SAANYS extends warm greetings to all members for a happy, healthy, and prosperous New Year. The events of the past year involving COVID-19 have permanently affected the delivery of public education in New York State. Without the Herculean efforts of our members, the children in NYS would have been deprived of the sound, basic education as required by the New York State constitution. We thank you for all you have done and the mountain of work that still lies ahead as COVID-19 is brought under control. This article will recap the government’s actions in response to COVID-19 and how they have significantly affected your jobs and will continue to do so in the near future.
On January 20, 2020, the World Health Organization designated COVID-19 as a public health emergency of international concern. On January 31, 2020, the US secretary of health and human services determined that a public health emergency existed in the United States nationwide since January 27, 2020. Governor Andrew Cuomo declared a state of emergency on March 7, 2020 due to COVID -19, thereby empowering him to “temporarily suspend or modify any statute, local law, or ordinance, order….” On March 13, 2020, President Donald Trump declared a national emergency in response to COVID-19. As of December 30, 2020, Governor Cuomo has issued 87 Executive Orders dealing specifically with the COVID-19 pandemic and six other Executive Orders without any legislative oversight. Executive Order 205 and the subsequent related orders all involve restrictions on travel to and from New York.
By Executive Order 202-4, which was subsequently amended four times, the governor closed all public and private schools in New York State for the reminder of the 2019-20 school year. In those orders, the governor declared public schools must perform three essential functions during the “pause.” As many of you remember, the three essential functions involved were providing (1) online instruction to students, (2) availability and distribution of meals, and (3) providing childcare for frontline health and hospital workers. Administrators and supervisors throughout the state quickly mobilized to perform these public functions. They worked around the clock to address every student, parent, and community member’s needs while managing and encouraging staff in executing the three essential services the public schools were mandated to provide during school closure. For that, SAANYS thanks you.
Some school districts engaged in collective bargaining with teachers’ unions regarding the delivery of online instruction. Sadly, building-level administration and programmatic supervisors were not at the table. As a result, in those districts, the negotiated virtual instruction has left much to be desired, in that the instruction was not conducted on an ainteractive platform with teachers and students.
Most districts were also caught off guard based on the magnitude of the requirements to successfully provide online instruction. Issues arose regarding distribution of computers, iPads, internet access, and conductivity, to name but a few of the problems administrators and supervisors tackled. Virtual attendance still remains a problem in urban and rural areas.
A few school districts still required their administrators and supervisors to work on site during the initial months of the pause. However, the overwhelming majority of administrators and supervisors worked virtually during the spring of 2020. However, in May 2020, the governor required 50% of the essential workers who were home, working remotely, to return to work. This Executive Order ignited a debate statewide whether school administrators and supervisors were essential workers. Like most of the governor’s Executive Orders, and the subsequent guidance issued by the State Health Department and the State Education Department, the issue of who was an essential employee was clear as mud. SAANYS stepped in and worked with many local unions and districts to agree who is an essential employee — sometimes we were unsuccessful. Shortly, all districts must file with SED the identification of its essential employees and describe the essential job functions that the district requires to be performed by its essential employees, in addition to the three essential services the governor has previously identified.
In addition, by Executive Order, spring school vacation was obliterated. As a result, many administrators were denied use of vacation days as they worked around the clock to meet the needs of their communities. SAANYS assisted many bargaining units in successfully negotiating agreements to roll over or get paid for unused vacation leave during the 2019-20 school year. SAANYS is now working on extending those vacation rollovers or payout agreements for the 2020-21 school year.
In the 2019-20 school year, SED with the approval of the governor suspended Regents examinations in the spring of 2020 as well as the requirements of APPR. SAANYS again stepped in and worked with school districts and BOCES to grant tenure to building principals and program leaders up for tenure under the APPR structure, who obviously did not comply with statutory mandates involving APPR that school year. So far, there has been no litigation on the award of tenure without strict adherence to the statutory mandate of three consecutive effective ratings and no rating of developing or ineffective in the final year of probation. Yet, SAANYS anticipates in the future there may be litigation on this topic.
In June 2020, as graduation 2020 drew near, much time was devoted to working with administrators and supervisors, especially high school principals who were left with a daunting task of providing parents and students with a virtual and/or drive-in graduation ceremony, if not an in-person graduation ceremony. SAANYS frequently reviewed with our clients, the rules of County Departments of Health as well as State Department of Health guidelines regarding public gatherings to ensure the ceremonies adhered to that guidance.
Over the summer, SAANYS worked with many members on vacation-related issues and the mandates of quarantining upon return from vacation. It is interesting that in certain cases, superintendents would declare administrators essential employees to obviate compliance with the mandate of quarantining from out-of-state travel. Also, Governor Cuomo did not order quarantining for travel to any state contiguous to New York, since many New York workers reside in those states, including some of our members. Currently, travel beyond the contiguous states currently requires (1) a testing requirement in the destination state within three days as well as testing within four days of a person’s return to New York or (2) quarantine upon return for 14 days, which has recently been modified to 10 days according to the latest CDC guidance.
Also, in the summer of 2020, administrators and supervisors worked with central administration in presenting school reopening plans in the fall of which plans had to include in-person instruction, full remote instruction, as well as a hybrid, or combination of both. Again, SAANYS assisted members in working on their reopening plans.
A few big issues have developed over the past few months. One issue involves COVID-19 testing of school employees and students. Early on, problems arose concerning the lack of coordinated notification of test results of employees and students. It quickly became apparent that the County Departments of Health were not synchronized with other local Department of Healths as well as the State Department of Health, all of whom had to work closely in conjunction with local school districts and BOCES when positive test results occurred in the school setting. Delays in notification of positive results occurred, especially where administrators and supervisors worked in one county but lived in another. Remember, you are obligated to report your positive test result to your superintendent immediately.
A second issue now upon us involves who is going to test students and/or employees who return to work. As we currently know, school nurses, based on their licensure, are currently authorized to test students and employees for COVID-19. In fact, during the pandemic, the value of school nurses has been recognized and very much appreciated. However, now if an administrator or supervisor completes the three-hour course on test administration, they too may be called upon to perform these tests in the school setting. In this regard, SAANYS’ college administrator members have not been asked to perform testing. Such testing is being handled by others. Understand that a directive to administrators and supervisors to perform COVID-19 testing will lead to impact bargaining.
SAANYS has also explored the constitutionality of ordering school personnel and students to be tested prior to admittance into the school. Under the public health, safety, and welfare exception to government action, such requirements will be upheld in any constitutional challenge.
There have also problems associated with the governor’s rollout of zones based on metrics and the designation of red, orange, yellow, and green zones. After some flip-flopping, schools in red or orange zones do not have to completely close down. Instead, the school buildings must conduct testing that guarantees 25% of the building population will be tested each week until the entire school population has been tested.
Presently, County Departments of Health are stepping back from contract tracing. Administrators and supervisors are now performing these tasks in school districts, especially on Long Island. In addition, the administrators and supervisors are also now responsible for notification of employees and students regarding positive cases of COVID-19 and mandatory or precautionary quarantining. These two additional tasks being performed by administrators increases the workday and work weeks of our members and will also lead to impact bargaining.
With the cancellation of the January 2021 Regents examinations, the question remains whether SED will require administrators to adhere to the APPR plans previously submitted to the state. SAANYS is working to have the state forebear compliance for this year, but we recommend that our clients continue to adhere to the mandates of their plan until otherwise directed. Furthermore, APPR plans need to be revised. SAANYS strongly suggests that you contact our Legal Department for guidance and recommendations.
The next COVID-19 related issue on the horizon is vaccination. As you may know, school personnel are designated in Phase 1B for inoculation, though the rollout of vaccinations has been horribly delayed in New York thus far. That mandate leads to the next possible constitutional challenge involving whether community colleges, school districts, or BOCES can mandate its administrative/supervisory employees to be vaccinated. Some people may object for personal reasons, on religious grounds, or due to medical reasons (like the flu vaccination which may be fatal if administered to people with Guillain Barre Syndrome). Neither New York nor the United States has been confronted with a fatal virus of this magnitude before. Therefore, if a state law (akin to the 2019 mandatory measles vaccination) or federal law is passed that mandates vaccination for all school personnel including students, it will probably be upheld as necessary on constitutional grounds in the interest of public health, safety, and welfare unless medical information is presented that would show the administration of the vaccination will lead to serious medical complications and/or death. The other grounds for refusal will be rejected in a subsequent court challenge. However, that litigation and decision is still down the road.
Looking ahead, several issues will need attention. SAANYS is here to help its members tackle these issues. Members should be prepared again to negotiate the rollover or payout of unused vacation leave that cannot be taken during the 2020-21 school year. Bargaining units should also negotiate the impact of the multiple COVID-19-related tasks thrust upon administrators during the pandemic as discussed. As mentioned, APPR needs to be renegotiated and SAANYS may be of assistance there. With New York’s poor economic forecast, including the still threatened 20% cut in state aid, some administrative positions have already been cut resulting in larger workloads for the remaining members of the administrative unit. This situation also warrants impact bargaining. Equally important in those situations is to file improper practice charges with community colleges, school districts, or policies; or if BOCES attempts to transfer administrative duties outside the bargaining unit. Those units, which have negotiated single-year rollover contracts from last year or have multiyear contracts expiring this year, would best be served by enlisting SAANYS to help them in collective bargaining successor contracts as effectively, efficiently, and quickly as possible. Continue to do the outstanding jobs that you are currently performing and remember SAANYS has your back.