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Payment Due to School Employees after Senate Bill 751 and the CARES Act

Section 1153 (24 P.S. §11-1153) of the Pennsylvania School Code provides that “[w]hen a board of school directors is compelled to close any school or schools on account of a contagious disease . . . or other causes, the school district shall be liable for the salaries of the teachers of said school or schools for the terms for which they were engaged.” On March 13, 2020, Governor Wolf issued an Emergency Declaration closing all public schools in the Commonwealth due to the COVID-19 Pandemic. As such, due to the Public School Code drafters’ insight, teachers were guaranteed their salaries through the end of the school term in June of 2020.

Not so clear was the case of the many other employees of a public school district. Some districts were considering layoffs and others were simply wrestling with what was right for employees when balancing the interests of taxpayers. Of critical importance was the issue of health insurance coverage in the event of layoffs during the COVID-19 Pandemic. It is well known that in the event of a layoff, an employee can access their employer sponsored health insurance through COBRA for a period of eighteen (18) months. What is less known, however, is that while employers can offer the coverage at the full cost (and can charge an administrative fee on top) they can also provide coverage at either partial or no cost to the employee.

However, much of this debate ended with the passage of Senate Bill 751. This bill amends the Public School Code in several ways. Specifically, it provides that “no employee of any school entity who was employed as of March 13, 2020, shall receive more or less compensation than the employee would have otherwise been entitled to receive from the school entity had the pandemic of 2020 not occurred.” So, while this clears up many questions, it leaves open for interpretation the issue of extra-curricular, substitutes and contractors. Let’s look at each class of employees:

 

  • Extra-Curricular:  These are typically coaches, club advisors, event producers and the like. It appears that if they were appointed and began their activity by March 13, 2020, they are entitled to be paid for the activity. Senate Bill 751 clearly gives them the right to be paid. This is true of non-professional employees who are appointed to a position as well (i.e. community member coaching a team or producing the Spring play). This would not apply to those who might be assisting at a track meet or playing in the pit orchestra at the play that has not taken place.
  • Substitutes: This classification is a little bit different. If your district hired a substitute service, you do not need to pay them, as you are not calling them. You should however, carefully review your contract to be sure. There may be a force majeure provision to review. If you hire your own substitutes, you should look at each one carefully. A building sub who is in every day and floats throughout the building or the district is entitled to be paid. A long-term sub who was just hired and on the payroll effective March 13th should also be paid. However, those who are called in on an as-needed basis do not need to be paid. For long serving substitutes, you can look back and determine how many days they have worked in past years and project that forward to this year. While this is not mandated, it offers some reasonable standard by which to measure payment. Some IUs and districts have selected a number of weeks to look back (such as six or eight weeks) and then projected forward for the remainder of the school year. The thought behind this approach is whether they could make a claim for payment under 751.
  • Custodians:  751 also provides that “each school entity shall provide any employee who is responsible for cleaning school facilities, as a result of, or during the threat to health and safety caused by, the pandemic of 2020, with appropriate cleaning materials and protective clothing and gear as recommended by the Centers for Disease Control and Prevention.” While this seems straightforward, the School District should be meticulous in ensuring that they remain in compliance with CDC guidelines in this regard. These guidelines will likely continue to change.
  • Educator Continuing Professional Education: Each professional educator’s current continuing professional education compliance period is extended for one year from the effective date of the Act.
  • Transportation Contracts:  Finally, 751 contains a section stating, “Each school entity may renegotiate a contract for school bus transportation services to ensure contracted personnel and fixed costs, including administrative and equipment are maintained during the period of school closure. During the period of school closure, the school bus company shall submit weekly documentation to the school entity that its complement levels remain at or above the level on March 13, 2020, in order to continue being paid.” For this reason, it is advisable for a district to revisit and review its transportation contracts. In addition, the Act states that “if a school entity continues to pay a school bus transportation contractor or operates its own school bus transportation, the school entity shall be eligible for reimbursement from the Department of Education at a rate the school entity would have received had the pandemic of 2020 not occurred.” While the language regarding continuity of payment is permissive in 751, the Federal CARES Act of 2020 provides further, stronger support for continuity of payment as it contains a provision at Section 18006 that states, “A local educational agency, State, institution of higher education, or other entity that receives funds under the Educational Stabilization Fund, shall to the greatest extent practicable, continue to pay its employees and contractors during any period of disruptions or closures related to coronavirus.”

 

In conclusion, the state and federal statutes provide support for continuity of payment for employees and contractors, generally speaking. However, it is uncertain how this will apply in practice in each unique circumstance, and in turn, issues and corresponding solutions will develop on a case-by-case basis. As such, we will continue to update you as we receive additional information.

Brian F. Boland

Brian J. Boland

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