Individuals with certain serious, pre-existing medical conditions may be at greater risk of severe and permanent complications or death should they contract COVID-19. Teachers in such circumstances who are medically unable to return to work in the current context should request an accommodation with respect to returning to school in September. Such matters are addressed individually, on a case by case basis, so the facts and medical documentation will be critically important. The school districts, as employers, have a duty to accommodate an employee’s disability, to the point of undue hardship.
There are two main ways in which employees are accommodated: by varying their duties (the employee does the same work, just in a different way or with certain supports/protections in place); or, by re-assignment to a different position (the employer changes some or all of the employee’s job duties and replaces them with different, available work that is compatible with their functional limitations). The first step is always to consider whether a teacher requiring accommodation can be accommodated within their usual workplace, by doing the same work, in a different way.
If a teacher feels they need an accommodation due to increased risks from potential exposure to COVID-19, they must obtain medical documentation regarding their condition and functional limitations, including particular risk factors (a family doctor or treating specialist note would be a good starting place), and provide this to the school district along with a request for accommodation. The employer may request additional medical information, which should be done in a timely manner. To support a request for accommodation, the documentation must establish a medical need – convenience or preferences, even legitimate ones, will not trigger the employer’s duty to accommodate to the point of undue hardship. Further, if measures taken by the employer are sufficient to allow the teacher to work within their functional limitations, further or different accommodation will not be required – an employee is not entitled to insist upon a particular or preferred accommodation.
The following general advice is provided for teachers who are considering seeking a workplace accommodation:
- The teacher must identify to the employer, in writing, with NLTA assistance, that they are requesting a medical accommodation. In many cases, the employer may not be aware that a particular teacher suffers from a medical condition if they did not need an accommodation prior to COVID-19.
- In most cases, the employer will require medical documentation to both substantiate the request for accommodation and to assist in determining the teacher’s functional abilities and how those limits will impact upon their usual work. In the case of teachers who face increased risk due to COVID-19, documentation should confirm a high-risk condition (details of diagnosis are not required) and the nature and seriousness of repercussions should they contract COVID-19.
- Medical documentation in support of a request for accommodation should provide as much detail as possible on functional abilities and limitations. The school district may seek further medical information, including identifying safety measures implemented at the workplace and requesting the physician’s input on what additional adjustments may be needed, if any.
- The school district will likely first consider whether a return to the workplace with specific health and safety protocols ensured will meet the teacher’s medical needs. This could include the provision of personal protective equipment (PPE) for the teacher. If a return to the workplace is not an option for the teacher at that time, alternative arrangements will be explored.
- It is important to remember that the employer’s duty to accommodate is to the point of undue hardship. Therefore, if there is no available alternative work, or the teacher is not capable of such work, accommodation may not be possible. If the District is unable to accommodate, the teacher may be required to access sick leave or take unpaid leave unless and until an accommodation is possible or circumstances change.
Teachers may also request accommodation for reasons of family responsibility. For example, such an accommodation might be needed if a close family member with whom a teacher lives or for whom they are legally required to provide in-person care is at greater risk of severe and permanent complications or death should they contract COVID-19, and the family member’s doctor states that the teacher must take every possible precaution to avoid exposure to COVID-19 and therefore cannot return to school. It could also apply if a teacher has no childcare but is expected to report to work.
The process and advice for seeking accommodation when a family member is affected is similar to that described above; however, the family member’s medical providers must provide the requisite documentation, not the teacher’s physician. As well, it is important to note that for these types of accommodations, a teacher must be able to demonstrate that they have thoroughly investigated the availability of other reasonable alternatives, apart from employer accommodation, for providing care for the family member. Again, only requirements supported by appropriate medical documentation will trigger the duty to accommodate, and the employer is only required to accommodate to the point of undue hardship.
With respect to childcare requirements in particular, members for whom such family responsibilities interfere with the ability to attend in person at school should refer to the following information:
- Consider what accommodation you need. Are you requesting to teach online from home? Are you requesting an unpaid leave? (With the exception of family leave [three days per school year], the employer is not obligated to provide paid leave in such circumstances.)
- Let your employer know about your situation as soon as possible by contacting Human Resources, in writing, copying your school administration. Teachers seeking accommodation may need to provide appropriate documentation to support their request.
- Make sure your communication/email is as detailed as possible about your situation. You need to establish that the requested accommodation is necessary (not preferred or more convenient). Explain why you need the accommodation. Provide the ages and number of your children and explain if they have exceptionalities or particular needs that are relevant. Inform the employer of any outside childcare challenges that might be applicable. Make sure you are clear about why there is no one else available/able to provide the childcare you need at this time.
Generally, in response to a request for accommodation, the employer will either request additional information, will propose an accommodation, or will refuse to accommodate. The teacher (in consultation with NLTA) will decide if a proposed accommodation is appropriate and meets their medical needs. If there is a refusal to accommodate, due to the employer asserting that accommodation is not required or that accommodation to the point of undue hardship is not possible in the circumstances, teachers have access to the grievance procedure.
It is important to note that, separate and apart from the accommodation process, there is also a process to enable teachers in schools in which in class instruction has been suspended, and who can perform their duties appropriately, to work from home. This may sometimes avoid the need to access the accommodation process.
NLTA members seeking advice/assistance on specific matters related to their individual circumstances should contact the Association via firstname.lastname@example.org.