As independent schools continue to navigate the new normal, many business officers and HR directors are faced with developing new personnel procedures. In a recent webinar hosted by the National Business Officers Association (NBOA), Amber Stockham, Director of Human Resources, and attorneys Matthew Batastini from Schwartz Hannum PC and Grace Lee from Venable LLP, discussed difficult-to-answer personnel questions. Check out the Q&A below for key takeaways from the webinar.
 

Q: What is a good ADA process for employees who don’t want to return to the classroom? What are reasonable accommodations?

A: Since COVID regulations are still relatively new, there is not a lot of guidance with respect to what exactly is a reasonable accommodation for an employee whose doctor says they can’t come to work because of the virus. But in general, any good ADA process starts with a request for documentation from the employee’s physician detailing what the disability is and what accommodations are needed. The Americans with Disabilities Act also requires employers to engage in the interactive process with employees to come to an accommodation agreement that will allow the employee to complete the essential functions of their position. In this COVID instance, some examples of accommodations include; providing extra PPE for teachers, removing duties with high student exposure risk like drop off or cafeteria duty, allowing teachers to teach virtually from another location on campus or in their homes, etc. The most important thing to do is to engage in this interactive process with the employee, get the documentation needed from their physician, and decide what is reasonable depending on the role the employee plays in the school.
 

Q: What is covered by FMLA for COVID high risk groups or for taking care of family members?

A: In order to be eligible for FMLA, you have to determine if the employee is an eligible employee depending on what your school handbook and requirements state. So, if an employee becomes hospitalized or unable to work as a result of COVID, they would be allowed to take FMLA. Similarly, if a family member becomes sick with COVID-19, the employee could take FMLA to care for that family member. In both instances, normal FMLA rules apply where you would need to determine if they are an eligible employee and obtain the required medical documentation. However, on the other hand, taking leave to avoid exposure to COVID if you are high risk or live with someone who is high risk, will not be covered by FMLA. If someone does not have a disability, they are not entitled to an accommodation under the law.
 

Q: Can you pay faculty who are teaching on campus more than those who are teaching from home?

A: There are a lot of factors going into these types of scenarios right now. A teacher who is teaching from home may not be performing some of the additional duties that they perform when they are in the classroom such as after school activities, monitoring hallways, drop-off and pickup. So, if the teacher who is working from home is not performing those types of duties, it could be reasonable to adjust their pay accordingly. In general, when you provide an accommodation to someone that results in a reduction of hours or responsibilities, you can adjust the pay temporarily in accordance with that change. Either way, if you are planning on taking action to adjust any employee’s pay, it is best to do it consistently across the board.
 

Q: What is the recommendation on whether or not to require COVID-19 testing for any student or employee returning to school after testing positive and quarantining?

A: The EEOC has stated that testing employees is allowed as long as it is job related. The question of how to treat returning students returning after quarantine is largely governed by state law. It is best to look at your local and state guidelines and if the appropriate action is not clear, work with your local department of health. The main issue you may have with requiring testing for students is parent objections on the basis of religion or medical conditions.
 

Q: If somebody can only do part of their job duties from home and they are required to quarantine, can they receive partial emergency paid sick leave and partial regular pay for their work week?

A: Emergency sick leave is available to someone who cannot work or telework. If the school is allowing telework for employees who are required to quarantine, then they can take partial emergency sick leave if the school and the employee can agree on the schedule based off of what they can accomplish in their day-to-day job remotely. The Department of Labor has stated that they encourage flexibility in these situations and that they support these types of voluntary arrangements where there is a combination of telework and intermittent leave.
 

Q: How does the PPP loan impact the FFCRA reimbursement for the additional loan? After PPP funds are exhausted are credits then available for FFCRA?

A: The fact that a school gets a PPP loan doesn't mean that their employees can’t take FFCRA or get reimbursed for amounts that you pay out on FFCRA. The only limitation is when a school is calculating the amount that you want to get forgiven on your PPP, you cannot use any payments you made pursuant to the FFCRA as part of that calculation. If you took a PPP, you have 24 weeks to use the funds.
 

Q: Can schools opt out of the employee payroll tax deferral?

A: Yes, and they may want to. If you elect the deferral and the employee leaves, the school is left holding the tax liability and they will have to pay it back anyway – it’s not like a forgiveness. There have been many instances where schools have elected to opt out.
 

Q: If a school has to furlough employees, what are the best practices for handling benefits coverage?

A: Schools should be making sure that your documented plan allows for you to cover furloughed employees. A lot of times, insurance plans will have eligibility requirements that someone must work a certain number of hours in a week in order to qualify for benefits (this varies by plan). If employees don’t meet the school’s eligibility criteria, they could qualify for COBRA coverage. If they do qualify for COBRA, the school could make a decision to continue to pay its portion of the benefits during the period of a furlough. Many insurance carriers are relaxing the eligibility criteria during this time, so it is smart to check with your school’s broker and insurance company.

To watch the full-length recording, visit the NBOA Webinar Archive here. 
 
The NBOA Fall Webinar Series is sponsored by First American Education Finance. The goal of the webinar series is to bring the latest and most relevant information to independent school professionals in an easy and accessible format. Given the state of the current K-12 environment, this fall series contains a variety of different topics around how independent schools are navigating the COVID-19 pandemic.

Fill out the form to receive more content from NBOA's Fall Webinar Series on navigating back to school during COVID-19.