NJPSA LEGAL DEPARTMENT CORONAVIRUS GUIDANCE
The Governor announced on Monday, March 16, 2020, a mandatory Order to close all New Jersey public and private schools. The prior week he declared a State of Emergency which, among other things, called for the closure of all state offices. Since then, we have received many calls from administrative staff inquiring about whether superintendents can nevertheless require them to come to work. The following guidance is intended to assist our school leaders through this difficult period.
Does the emergency declaration define essential services?
No.
Do superintendents have the authority to require administrative staff to be at their work sites?
Yes. But, as a first step to stay within the spirit, if not the letter of the emergency declaration, superintendents should define the essential needs requiring administrators to be at their work site and the essential services they are being required to provide.
Should there be discussions with superintendents who require administrators and other staff to be at their work sites?
Yes. Any discussion should start with the premise that as school leaders we are committed to ensuring that essential services continue to be provided and that all appropriate measures are taken to protect school employees and others in the school community. To this end discussion points should include the following:
1. What are the reasons to require administrators or other personnel to be at their worksites?
2. What functions are they expected to perform? Of those functions, what cannot be done remotely?
3. If an administrator who is required to be at work becomes infected with COVID-19, what measures will be taken to protect anyone who came into contact with that administrator? What safety measures will be taken to protect anyone who was in the building with that administrator? How far back in time will such measures extend? What procedures are in place to ensure adherence with protocols established by relevant agencies such as the CDC, New Jersey Department of Education and New Jersey Department of Health in order to prevent exposure, and respond and mitigate potential harm when exposure to an individual with the virus occurs, including the duty to warn others?
4. How is the district maintaining and logging the current contact information of all persons who need to come into the building during this time for notification purposes in the event an infection is determined, and who will be responsible for contacting all such persons?
5. What measures are being taken to deep-clean and disinfect the schools on a continuing basis and what protective gear is being provided to such persons?
6. What safety measures will be taken to ensure that the administrator required to be in the building will be reasonably protected from contracting COVID-19?
7. Administrators who attend work and who become infected may be covered by workers compensation. N.J.S.A. 18A:30-2.1 provides that employees who are injured during the course of their employment are entitled to paid leaves of absence that are not to be charged as sick days.
8. Districts may be exposed to further liability if the administrator, who is required to come to work becomes infected with the virus and passes it on to others.
9. What flexibility will be given to administrators who have children or elderly parents at home?
10. Has our district developed protocols in consultation with the NJDOE’s Office of School Preparedness and Emergency Planning to ensure that food distribution occurs in the safest manner possible? As districts are required to provide food distribution services during this time, how can this process be centralized and how can such distribution be completed on a staggered schedule to minimize persons in any building on any given day?
This list is by no means all-inclusive. But it does represent basic concerns that should be discussed when staff are being told that they have to come to work during this period.
Governor Murphy’s State of Emergency Order
The pertinent paraphrased points of the Order are as follows:
1. COVID-19 is extremely contagious. The number of confirmed cases continue to increase exponentially in New Jersey and across the nation and health experts agree that the number of actual cases far exceeds the number of confirmed cases.
2. The State of Emergency Order requires appropriate measures to mitigate the spread of the virus which means not only that people should stand 6 feet apart when together, but even more significantly, it means that if you can work remotely – do so.
3. The Order calls for flexibility in work rules and requires all employers to fully require compliance with appropriate safety measures while ensuring the delivery of essential services. This includes having all nonessential personnel work remotely so as to limit any risk of exposure to the fewest number of people.
4. The Emergency Order calls for the evacuation of all persons, except for those emergency and governmental personnel whose presence the State Health Director deems necessary, from any area where their continued presence would present a danger to their health, safety, or welfare because of the conditions created by this emergency.
5. It provides that no municipality, county, or any other agency or political subdivision of this State shall enact or enforce any order, rule, regulation, ordinance, or resolution which will or might in any way conflict with any of the provisions of this Order, or which will in any way interfere with or impede the achievement of the purposes of this Order.
Does the Emergency Order apply to school districts?
Yes. A school district is a political subdivision of the state.
Closure of Schools
In announcing on March 16, 2020, the closure of all public and private schools Governor Murphy said the following:
“In order to slow the spread of COVID-19, we must take aggressive and direct social distancing action to curtail non-essential activities in the state. Our paramount priority is to ‘flatten the curve’ of new cases, so we do not overwhelm our health care system and overload our health care professionals who are on the frontlines of the response. My Administration continues to work closely with our communities, stakeholders, union representatives, and business leaders to ensure that we all do our part to win the fight against the novel coronavirus and emerge stronger than ever.”
Following the Governor’s announcement, Commissioner of Education Repollet gave the following statement:
“These are extraordinary times, and educators throughout the state have been taking extraordinary measures to create plans for high-quality home instruction, ensure food security for children who depend on free and reduced lunch, and provide services for all special needs students…”
“We understand this is an unprecedented situation, and we are asking institutions to be extra vigilant in protecting the health and safety of their students, faculty, staff and the entire campus community…”
Moving Forward
While different districts have different needs, what is clear from both the Governor and the Commissioner is that non-essential employees should stay home and work remotely. This means that school superintendents should not require administrators or other staff to be at their work site without first defining the required task to be performed and how and why it is deemed essential. And, when there are essential tasks to be performed, measures should be in place to protect staff as much as humanly possible. During this crisis we need to work together to limit exposure to this contagion as much as humanly possible.
In this extraordinary time, the NJPSA will continue to do everything it can to assist and support our school leaders.
For more information, please see the following links on NJPSA’s website:
Resource document link – Coronavirus Guidance and Links – NJPSA and FEA
LEGAL ONE webinar link – LegalOne Coronavirus and Our Schools 3/18/2020
The attorneys at NJPSA are available to assist our members with any questions that arise. Please email us with your contact information and we will be in touch right away.
Thank you and be safe!