Classifying “essential” employees in schools

SAANYS is continuously receiving requests for guidance from school administrators as to whether they are still “essential” employees in light of the rapidly changing Executive Orders and, if so, whether the actions of specific districts fall within the scope of these orders. While this requires a case-by-case analysis, SAANYS would like to provide the following general guidance:

According to Governor Cuomo’s Executive Orders, it appears that school superintendents have the authority to determine which district employees are “essential” for critical tasks to be performed at public schools as directed by the State Education Department.  This authority is consistent with New York State Executive Law.  Who is deemed essential is subject to job function and required time periods as we handle COVID-19.  SED has issued guidance about the necessary tasks to be performed at public schools including (1) the distribution of meals, and, (2) implementing on-line instruction.  The latter may encompass availability and supervision to distribute materials, supplies, equipment, etc. to facilitate the provision of instruction to students.  Please understand that the distribution process must adhere to the stringent emergency rules in place mandating “shelter-like” protocol and the anti-congregating orders.  While the governor has eliminated many of the childcare facility restrictions in place, SED has not provided any concrete guidance about implementing daycare facilities at public schools for medical personnel.  This part of the governor’s original Executive Order has not come to fruition yet.

As applied to the approximate 720 school districts across the state these directives vary depending on the district and region.  However, the point remains that the superintendent has been empowered to determine which administrative personnel are “essential” and when their physical presence is required to fulfill the districts’ obligations in these areas. Many school districts are accomplishing these tasks on a limited schedule and implementing a “rotation” so that not all administrators are reporting at the same time.

On the other hand, like other private and public sector employers, school districts have been ordered to facilitate work from home by organizing electronic and telephonic systems that allow administrators to perform their duties remotely.  There is a recognition among central office personnel that once the systems of online learning are in place, the demands on administrators will lessen somewhat since a large majority of their time is spent supervising staff and students.  One thing we do not support is that it is necessary to have administrators at work to “supervise” instruction that is being provided remotely by teachers.  That act is needlessly exposing people to health risks that the Governor has made should be avoided as we live through the “pause period”.  A couple of districts have suggested doing online professional development to fill some of the time.  Again, such matters are left to the local school district to decide.

As citizens, you should question the actual time spent on-site working.  Limit your physical presence to essential tasks that need to be performed in the three Executive Order areas, which to date are only two, since the childcare responsibility has not been satisfactorily articulated or directed at the state level yet.  If you get push back ask for specific responsibilities and the rationale that they cannot be provided remotely.  SAANYS would also suggest that any on-site work also address the CDC’s preparation and cleanup concerns.  To avoid confusion, demand the details be in writing that explains it and further ask about what protocols will be in place to help protect district employees and the public if they are coming to your facilities for meals, child care, distribution of materials, etc. – cleaning; availability of sanitizer, gloves, masks; the 6 feet social distancing mandate, and the limited 10 person congregation rule.  Remember the governor’s Executive Orders clearly prohibit people from leaving their homes and gathering for any non-essential purpose.  Accordingly, to best fulfill that Order, legitimate dialogue should impose staggered times to keep the potential number of people in any distribution area to 10 or less.  Also, how will the district address employees who have COVID-19, or who are under precautionary or mandatory quarantine, or those in the at-risk groups about not reporting to work. In addition, how will the district assist its employees who have childcare issues themselves about reporting to work as fulfilling “essential” duties.


Other frequent questions related to the 180-day requirement waiver in relation to closings different than what was done by the governor …

The governor’s Executive Orders were not designed to “punish” districts. On March 16, 2020, Governor Cuomo made it clear that waivers of the 180 requirement will only be waived to the extent of closures ordered by him. So, districts that closed before his closure or that stay closed beyond the date he decides, may well fall short of the number of days to protect their full state aid. Without extending his April 1, 2020 return date, any district that continues to be closed will run the risk of having to keep schools open after their scheduled last day to meet the revised number of days of instruction obligation for state aid.  At SAANYS, we are working to determine if the governor will extend his school closure order beyond April 1.  The moment we have a definitive we will let you know.  Stay tuned.