School District Unions and COVID-19 Safety Regulations

There are new COVID-19 safety regulations. Can a school district actually implement them?

Shorter days and chillier weather typically bring excitement for the start of the new school year. But with the country’s present health crisis, “back-to-school” will mean new challenges, the scope of which we are still understanding. Moreover, a school district’s current labor contract may make it difficult to adapt to evolving COVID-19 requirements and evidence-based regulations. This article looks at common labor issues in the school year, so districts can focus on educating students.

A school district generally cannot change its labor agreement with teachers and other employees before the end of the contract. Unilaterally changing the contract will likely result in an unfair labor practice or a grievance. Both can cause expensive headaches. Still, the labor agreement may allow for the implementation of COVID-19 requirements and best practices.

The first step is to see if there is conflict between the regulations and the terms of the labor contract. It is possible that a conflict may not exist. Generally, a school district maintains all rights not bargained away. This means that the changes can be adopted unless there is a direct conflict between the new COVID-19 requirement and the labor agreement. Similarly, some contracts have a broad “work rules” article, which allows a district to adopt “reasonable” work rules. Here, a district would be adopting the regulations under this section of the labor contract so long as new work rule is reasonable. In either situation, then the changes can be unilaterally implemented by the school district without taking additional steps.

Most likely there will be a conflict between the new COVID-19 requirements and labor contract. So two exceptions to altering a labor contract mid-term may come into play. First, is the “exigent circumstances” exception. An “exigent circumstance” is a situation that requires unusual or immediate action. COVID-19 and its related safety precautions will almost certainly be viewed as an “exigent circumstance.” To use this exception, a district must first make a good faith effort to bargain with the union, and if that fails, then changes may be implemented. But be careful, a district must justify each change. A district cannot be greedy. For COVID-19, the more closely a district’s actions are tied to safety regulations for students and employees, the more likely the changes are to be upheld.

The other exception is the “legislative exception.” If the agreement is modified to become compliant with a law enacted after the ratification of the CBA, from a higher-level legislative authority, it will fulfill this exception. This would include the general assembly, the Ohio Department of Education, and even voters.

Some Examples

Example 1:

“School District 1” has the following language in its labor agreement: “All high school academic classes will be organized in each school building so as to have an average class size in each departmental area of approximately 28 pupils per class.” Because of social distancing, School District 1 will likely have fewer pupils per classroom. Still, teachers with hybrid classrooms may end up with more students overall. So, what does this mean?

To make a determination would require a global review of the labor contract. But just considering the language above, there is arguably no conflict with the labor agreement. The labor contract talks about students per classroom, and while there may be more students per teacher, it is not addressed by the labor agreement. That means School District 1 can assign more students. Second, even without the previous argument, COVID-19 presents an “exigent circumstance.” So the school district could unilaterally implement after a good faith attempt at bargaining. Finally, the “legislative exception” may also apply, depending on legislative authority for the requirement.

Example 2:

“School District 2” has the following language in its labor agreement: “In no event shall a teacher’s workday begin before 7 a.m. or end after 6 p.m., unless the teacher so elects from time to time, or unless the teacher elected employment for, or chose assignment to, a position with a posted work day beginning before 7 a.m. or ending after 6 p.m.”

Here, scheduling on the weekends or evenings (as recommended by the Ohio Restart Guide) would conflict with the labor agreement. So, there would need to be an “exigent circumstance” or a legislative exception from a higher authority. COVID-19 likely presents an exigent circumstance, and CDC regulations could present regulations from a higher authority. Therefore, implementation could be possible, if necessary.

Communication is Key

Implementing a change contrary to the labor agreement is a last-case scenario. It can be done, but it would be a big deal. Before making changes, the district should be communicating with teachers, parents, and students. Successful labor relations and successful communications go hand-in-hand. As our understanding of COVID-19 evolves, so too will the steps necessary for safe learning. For this reason, a school district should be in contact with experienced labor counsel along the way.