05/11/2020

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Staffing Considerations Amid COVID-19 Disaster Proclamations, Executive Orders, and “Stay at Home” Orders

In the last several weeks formerly routine staffing considerations have now become much more complex for school districts as a result of the COVID-19 pandemic. This post is Part One of Two intended to provide some insight into addressing staffing considerations in light of recent Executive Branch actions and will address educational support personnel (ESPs). Part Two will address licensed staff and administrators.

The rapid changes in school district operations brought on by the Gubernatorial Disaster Proclamation and subsequent Executive Orders has and will continue to create ongoing challenges with respect to determining the appropriate staffing levels under these newly created operating paradigms for schools. In that regard, an initial joint statement was issued on March 17, 2020 and updated on March 27, 2020 by the Governor, Illinois Education Association, Illinois Federation of Teachers, Illinois Association of School Administrators, Illinois Principals Association, and Illinois State Board of Education to help assist with addressing staffing issues during the COVID-19 pandemic. 

The joint statement provides that, “Through the duration of the suspension of in-person learning, all school district employees on the district’s payroll will get paid as if the schools were functioning normally and they were performing their normal work, regardless of the district instructional remote learning plans developed during this time. Normal pay includes salary, hourly and stipend pay, benefits, and employees will receive full and normal service credit in their pension systems.”  It also acknowledges that “the employer can expect school district employees to participate in work activities in some form. The concrete details of the work, including stipend work, that will occur during this timeframe must be worked out through mutual agreement, but negotiations should focus on ensuring (1) continuity of education through instructional remote learning, (2) provision of meals, (3) other student and staff support measures as appropriate for each district to effectuate instructional remote learning; and (4) ensuring the performance of essential district functions and operations.”  Thus, although employees have been getting paid, certain employee groups have already been active (i.e. custodians) performing these functions, while others may not yet have been needed (i.e. paraprofessionals or bus drivers).  The extent of any “negotiations” regarding current working conditions has varied from district to district.  Many have proceeded based on informal conversations or emails.  However, as work continues, expect the possibility of more formal discussions or written documentation being required.

The March 27, 2020, joint statement further provides that, “Subject to existing contract language, all timelines, notice requirements, and procedures remain in place for a district that wishes to remove, dismiss, or reduce the hours of non-certified staff in order to decrease the number of support staff or to discontinue some particular type of educational support service.”  As schools plan for the next school year – and especially the possibility of more remote learning rather than in-person student attendance – decisions regarding the reduction in hours or employees may still move forward.

With respect to educational support personnel (ESPs), Section 10-23.5 of the School Code provides that ESPs subject to a reduction in force (RIF) must be provided written notice, “mailed to the employee and also given to the employee either by certified mail, return receipt requested, or personal delivery with receipt, at least 30 days before the employee is removed or dismissed or the hours he or she works are reduced.”  (Emphasis added.)  Section 10-23.5 also provides that the order of dismissal shall begin with the employee “with the shorter length of continuing service with the district, within the respective category of position.”

However, the contract language of any applicable collective bargaining agreement must be carefully examined for additional or different requirements, such as greater notice periods or specifics regarding the order of dismissal or position categories. Some examples of common areas to be reviewed carefully within a collective bargaining agreement (CBA) when considering a RIF include the following:

  • minimum notice periods or specific date windows for the issuance of notices of honorable dismissal;
  • whether there is a preference to maintain full time positions rather than dividing full time positions into part time positions;
  • specific descriptions of each job classification for RIF purposes;
  • “bumping” rights into another job classification for qualified employees, or the prohibition of bumping.

This is another area where negotiation with the union may be necessary. Certain restrictions that may have been prudent in a normal school year might now be overly restrictive.  It may be preferable to both the employer and the union to waive a provision now rather than requiring the district to proceed with a large reduction in force now. If so, the best practice would be to document such a waiver in writing signed by both parties.

The School Code also contains recall rights for reduced ESPs that extend for one calendar year from the start of the next school term, and collective bargaining agreements may expand upon these rights. However, there is no guarantee that any given employee who was reduced will remain available when offered a vacancy in the future.

The best course of action for each school district will vary – depending upon the unique characteristics of its staffing needs, collective bargaining agreements, resources, and future operational plans.  As the COVID-19 pandemic continues to develop, school districts should work with legal counsel to determine the best way to implement staffing changes to balance the obligations of the School Code and collective bargaining agreements with the changing operational needs of the district and the health of everyone involved.

The attorneys at Whitt Law LLC are well-versed in the myriad of issues surrounding staffing considerations and are actively monitoring State action in response to COVID-19. Please contact Whitt Law Partner James R. Dougherty or Senior Attorney Brian R. Bare if you have questions regarding this guidance document or staffing considerations, or to request a PDF copy of Part One.