Legal Q&A
Answers to real questions from real members in the field …
COVID-19 Related Questions
Q: What does the unit do when a member is given a counseling memo for allegedly failing to adhere to a district’s COVID-19 testing policy?
A. Depending on the facts and circumstances, the testing policy may be subject to collective bargaining if it wasn’t already negotiated. If the policy must be negotiated, then it’s possible to request removal of the counseling memo from the employee’s personnel file. While it’s true that counseling memos are non-disciplinary, it’s often unclear whether the meeting and associated memo are, in fact, non-disciplinary. Specifically, just because your employer calls it a “counseling memo” doesn’t mean it actually is. Further, because these issues are novel, it will require a case-by-case analysis of each situation and testing policy to determine the best path forward. It’s important to promptly call SAANYS Legal Department if a unit member is faced with potential discipline for allegedly failing to adhere to a COVID-19 testing policy.
Q: A Hudson Valley principal inquired about liability when the school nurse was out for an extended time due to COVID and no substitutes were available. The superintendent told the parents of a student needing daily medication not to have the student report to school until a nurse was back on duty.
A. NYS state law does not require a nurse in every building. Although it is understandably frustrating for the parent, who might bring legal action against the district, the medical needs of the student just could not be met while the nurse was out. Should the parents sue the principal and district, the member would be covered by a defense and indemnification, but it is wise to get in writing the fact that the superintendent was the one to exclude the student. It is also recommended that the unit approach the district about using some CARES act money to hire an additional nurse to float between buildings when coverage is necessary and also handle some of the contact tracing duties.
Q. A Long Island principal inquired as to when state COVID leave would apply.
A. Public sector employers are required to provide at least 14 paid sick days for COVID/quarantine leave for individual employees. State paid family leave if an employee’s minor child is quarantined is only available if the public employer opts into the benefit. Since NYS paid family leave is viewed almost as an insurance type benefit (like worker’s comp), the district would have to pay into it and would likely make any participation a subject of collective bargaining. Should a district have paid family leave negotiated, members who need to avail themselves of the benefit should call the SAANYS Legal Department for a breakdown of the overly complicated process relating to collecting the money. One thing to note: if there is paid family leave in your district, it cannot be collected if remote work is an option. Similarly, if an individual is asymptomatic and needs to quarantine, the COVID leave cannot be used if the individual can work remotely. Additional information can be found at: https://paidfamilyleave.ny.gov/covid19
Q. A unit president in the Southern Tier emailed to SAANYS a Memorandum of Agreement (MOA) for review that allowed a member to transfer into a newly created title called “Director of Operations,” the duties of which are designed mainly to deal with pandemic-related staffing and transportation coverage issues. Upon conversation, it was indicated that the parties agree that the new title should be a part of the unit, but were not going to formalize the placement until a contract was settled.
A. Even if a position is not meant to last beyond the pandemic, if the duties are those performed exclusively by a unit, there needs to be a MOA protecting the work. This could be either putting the title in the unit or an agreement to temporarily allow the work to be performed outside of the bargaining unit, under the agreement that the work will revert to the unit and neither side would use the temporary transfer in a PERB action.