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Do Teachers Have the Right to Refuse Returning to In-Person Schooling?

Many hands of volunteers during Maths class
By Ashley Ravid on July 23, 2020 10:53 AM

Secretary of Education Betsy DeVos recently announced a policy to have all students return to school for in-person classes this fall despite the increase in COVID-19 cases throughout the nation. The White House doubled down on this a few days later, with Press Secretary Kayleigh McEnany stating, "The science should not stand in the way of this."

While the virus appears to not be as serious for children as adults, what about teachers, aides, cafeteria workers, janitors, and all the other staff that make a school run smoothly? What if you have an underlying health condition? Do teachers have the right to refuse to return to in-person learning?

Tenure May Bring Extra Protection

Teachers typically receive tenure when they have worked for a school for a certain number of years. Tenure status means that teachers cannot be fired arbitrarily and that they cannot be fired without due process, which includes the right to a hearing to defend their job.

One of the reasons that tenured teachers can be dismissed for is neglect of duty, which means that a school district could make the case that a tenured teacher's refusal to return to in-person schooling is a valid reason to fire them.

Non-tenured teachers, however, are not usually required to receive a hearing when they are fired. If their school districts choose to require teachers to return to in-person classes and non-tenured teachers refuse, it may be difficult for them to avoid dismissal unless they are members of a teachers' union.

Union Power and Striking

In states where teachers are able to collectively bargain through a union, it's unlikely that many contracts address pandemics. Right now, teachers who are members of unions may find it easier to organize a collective strike if forced to return to in-person schooling.

In Texas, a teachers' union has already indicated its intent to strike if they are forced into unsafe conditions this fall. There are risks to going on strike, but teachers are hopeful that the possible dangers posed by forcing a return to in-person classes will outweigh the desire to send children back to school.

The Chicago Teachers Union has already put forth a list of conditions for returning to school in the fall, which schools are in the process of negotiating with, though they have already agreed to some terms.

State and national teachers' unions have also championed online-only classes for the fall until teachers, students, and school staff can safely return to the classroom without fear of COVID-19 transmission.

Many private school teachers also may not have the same rights as public school teachers. In the event they are called back in to the classroom, they will likely not have the same union backing.

Disability Accommodations

Returning to in-person learning before the coronavirus pandemic ends poses risks to all involved, but to immunocompromised teachers in particular. The Americans with Disabilities Act (ADA) legally obligates employers to make accommodations for disabled employees, meaning that it may be illegal for teachers and school staff who are at greater risk for COVID-19 complications because of disability or illness status to be ordered to return to the classroom.

If a forced return to in-person learning jeopardizes the health and safety of a teacher protected by the ADA, this may be grounds for legal action.

Additionally, Family and Medical Leave grants 12 weeks of unpaid leave without fear of job loss to all public school employees regardless of disability status. If you are a teacher whose district is requiring you to return to the classroom despite lack of protection against COVID-19, an employment lawyer may be able to help you navigate your options.

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