COVID-19: Exec. Order 7R Requires Schools to Pay All Employees, Others
Governor Lamont Issues Executive Order 7R requiring school boards to employ or restore to employment school staff and provide for payment of transportation and special education provider costs of staff compensation and health benefits
By: Kyle McClain
April 1, 2020
Last night, Governor Lamont issued Executive Order 7R (you can download it here) with several important provisions dramatically impacting public school districts and their boards of education in Connecticut.
1. Continued Funding for Boards of Education. The Order requires the State Department of Education to continue to process appropriated state grant funds intended to support boards of education including, but not limited to, entitlement grants such as the Education Cost Sharing (ECS) grant, payments for special education excess costs, and Choice programming. Municipalities are also required to continue to fund their local boards of education as set forth in the approved annual school budgets. It is presumed, but not stated, that this latter requirement would also apply to regional boards of education as applicable.
2. Continued Payment of Public School Staff. The order requires “school districts [to] continue to employ or restore to employment if already laid off, and pay school staff who are directly employed by the local or regional board of education, including but not limited to teachers, paraprofessionals and other support staff, cafeteria staff, clerical stall; and custodial workers, to the greatest extent practicable.” The Order specifies that boards of education “may require school staff to provide services during the period of closure to the extent consistent with state and federal laws, including any applicable Executive Orders, guidance, or public health recommendations, and shall not be required to continue such employment if the staff member secures other employment, or if the staff member would have been separated for reasons other than circumstances related to the COVID-19 pandemic.”
This section of the Order sets forth a broad economic mandate for public school districts. While most districts already have agreements with teachers unions to continue payment of their salaries as they provide distance learning, and most districts have continued to have custodians work in the schools, many have laid off, furloughed, or otherwise reduced hours (and compensation) of other employees. The mandate to “employ or restore to employment if already laid off, and pay school staff who are directly employed by [the board]” makes clear that the employees in positions specifically listed in the order must be paid, whether working or not, “to the greatest extent practicable.” What exactly does “to the greatest extent practicable” mean, and why is it included in the order? The Order does not make that clear and so far we have no guidance to work with. However, it is reasonable to conclude that it provides some leeway to boards of education to exercise their discretion in making payment determinations. For example, while it is easy for a board of education to determine how to continue to pay a salaried employees even if not working as their pay does not fluctuate, what about hourly employees, especially hourly employees whose regular work schedule fluctuates? “To the greatest extent practicable” allows boards of education to determine a procedure or manner of determining the appropriate payment. By way of further example, using an employee’s normal work schedule or average hours worked similar to the calculation specified for paid leave under the FFCRA which, coincidentally (or not), goes into effect today.
3. Preservation of Student Transportation Services and Special Education Providers. The Order mandates that boards of education continue to pay outside contractors that provide student transportation or special education pursuant to contracts with a board or district an amount determined to cover the “actual costs incurred” during the pandemic by the outside contractor in continuing to compensate the contractors employees and provide them health insurance. Specifically, the Order requires that “to the extent that a board of education . . . determines” that the relevant contract “requires amendment to more accurately reflect the actual costs incurred,” then “all parties shall promptly negotiate amendments to such contracts.”
The outside contractor is required to “attest and provide reasonable documentation of the fact that it is charging only the actual and reasonable cost of sustaining wage and health insurance payments for active employees and/or fleet while also engaging best efforts to avoid unnecessary costs.” The Order also specifies that such “continued compensation and health insurance for staff or others providing special education and transportation services and employees shall be continued to the greatest extent practicable – whether full-time or part-time – at rates commensurate to those paid and provided immediately prior to the declaration of these public health and civil preparedness emergencies, whether or not services are actually or immediately rendered. Nothing in this provision shall allow for contracted companies to be enriched beyond the actual and reasonable costs incurred for the purposes set forth above.”
Again, this broad economic mandate may or may not have an immediate impact on local school districts. Some districts may have already agreed to fund contracts completely, or negotiated amendments to those existing contracts to provide for compensation and benefits of the contractor employee’s, e.g., bus drivers. For those districts, this Order likely has no impact. But for others, this mandate, like the one above regarding school staff, may require immediate action.
The information contained in this post is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice. Any specific questions about this information should be directed to Attorney Kyle McClain.