The Legal Brief: Questions and Answers About Updated DHS Guidance on Essential Workers

On August 18, 2020, the U.S. Department of Homeland Security issued version 4.0 of its Guidance on the Essential Critical Workforce. This most recent update clearly identifies teachers, teacher aides, paraprofessionals, and specialists as essential workers. It also applies to, among others, those who support the education of K-12 students, which presumably includes administrators as well as operational staff.

Q: How does the designation of school district employees as essential impact a district’s operations?

A: In practice, it is not likely to have any impact. Previous versions of DHS guidance already included educators supporting distance learning or “performing other essential functions” as essential workers While the Governor’s executive orders define essential service workers by reference to the DHS guidance, the Governor’s executive orders also provide that schools should adhere to TEA guidance in operating schools. Districts should continue to look to the TEA for guidance on school operations.

Q: Since school district staff are considered essential, could a teacher be required to work even after being exposed to Coronavirus?

A: Presently, no. TEA’s current guidance requires teachers who have had close contact with a person with a lab-confirmed case of COVID-19 to remain off-campus for 14 days, so unless they change their guidance based on the updated DHS guidance, it does not appear any teachers would be in the position of teaching after being exposed to the virus. A school district could still require (non-exposed) teachers to come to campus, though for those with disabilities that put them in the high-risk category, districts may need to determine whether work from home could ever be a reasonable accommodation.

Q: Does the designation of teachers as essential workers impact their eligibility for leave during the COVID-19 pandemic?

The designation of teachers as essential does not have any effect on their rights under the Families First Coronavirus Response Act (“FFCRA”). As long as a teacher meets the eligibility criteria, he or she would be eligible for leave under the FFCRA. If a teacher has been advised to self-quarantine by a health-care provider, has symptoms of COVID-19 and is seeking a medical diagnosis, or has another qualifying reason, he or she would still be eligible for Emergency Paid Sick Leave (“EPSL”). If a teacher has a need to care for a child whose school is closed or child care provider is Expanded FMLA.

The only employees exempted from the leave entitlement (for both EPSL and Expanded FMLA) are health care providers and emergency responders. 29 C.F.R. § 826.30(d). FFCRA regulations define the terms ‘health care provider’ and ‘emergency responder’ fairly broadly, and they would include nurses employed by a district, as well as law enforcement.  Otherwise, all other employees are eligible for EPSL from the first date of employment, and all employees who have been on the payroll for at least 30 days are eligible for Expanded FMLA. 29 C.F.R. § 826.30(a).