Attorney for ATPE Helps Answer Teacher’s Concerns Over Reopening

Over the past week I have written a few articles about the concerns from teachers in regards to reopening. I had Jesus Chavez from the Association of Texas Professional Educators reach out to me to hopefully clear some of the concerns up. The following are the questions I presented, with answers courtesy of attorney Paul Tapp.

• Can you describe the ADA exemptions for the teachers? We had many teachers say they were revoked the day before they were told to go back to work. The more detail here the better.

The ADA is a federal law that requires that an employer provide reasonable accommodations to a qualified employee with a disability. Practically every term I used in that description could be the subject of a multi-page explanation so I won’t be able to give a full, detailed explanation here. I will, instead, just use one example that is particularly significant to public school teachers:

One significant requirement of the ADA is that an employer (including a school district) must make an individualized determination of what accommodations (such as working from home) would be reasonable for a disabled employee. An employee must be able to fulfill all the essential functions of their job with the accommodation, so removing an essential function of the job (like teaching for a teacher) is not considered reasonable. What is or is not “essential” can vary from individual position to position. For instance, it can be and historically has been the case that one essential function of teaching is being present with students in the classroom in order to supervise and maintain order in the classroom. However, there is a legitimate question whether that remains an essential function if the students are not in the classroom but are actually at home, learning remotely. Again, this is just one narrow issue with the application of the ADA but a significant one for teachers being told they have to report back to in-person instruction. The question is – do the in-person student numbers indicate that they (again – individual determination) really have to – has the situation changed enough to become essential now when it was not essential before.

• It feels like, at least in El Paso, the reopening of schools was rushed. What is the process that was provided to the teachers and schools to properly reopen the schools for face-to-face learning?

Unfortunately, the process of reopening schools was, perhaps, not as planned or as thoughtful as it could have been. There was hope during the summer that the pandemic would fade and not be a significant issue in the fall and as such, valuable planning time was lost. The fact that decision-making has been split between multiple layers of government and between local and state entities has caused more confusion. Finally, the simple fact that no one in modern times has ever faced a challenge like this pandemic means that everyone has been learning as they went.

• If the teachers have a complaint about the conditions of their school or classroom, what is the process they should go through to get the issues remedied?

This depends on the specifics of what the complaint. Most common is the “grievance”, which is a district process, mandated by the Texas Constitution, whereby employees can present complaints regarding their working conditions. Most school districts have a different process when the complaint involves an allegation of discrimination or sexual harassment. There are still other specific processes to contest a termination of employment in many circumstances.