HR Connection May 2021

MAY 2021

TEXAS ASSOCIATION OF SCHOOL PERSONNEL ADMINISTRATORS

TASPAHR Connection Your HR Quarterly Newsletter

Partnerships in the Pandemic Lubbock ISD Board of Trustees approved the agreements for providing childcare for local hospital employees

Also in this issue: • Compensation Issues • Employee Record Retention • Return to Full-time In-Person

Table of Contents TASPA Staff, Executive Board & Committees

04

President’s Message

06

Calendar of Events

07

Welcome New TASPA Members

08

Meet TASPA’s New Program Director

10

TASPA is Moving!

11

New Member Spotlight

12

Member Spotlight

13

Partnerships in the Pandemic

14

COVID-19, Workers’ Compensation, & Related Issues

16

Vaccination Brings New Protocols and Procedures to Waxahachie ISD

20

Diamond Sponsor Spotlight

22

Employee Record Retention Roulette

28

TASPA President Martha Carrasco

2021 TASPA Events

New TASPA Members

Featuring Mary Torres

Learn More About our New Office

Featuring Alison Sims, Abilene ISD

Featuring Rhonda Dillard, Frenship ISD

Lubbock ISD Provided Childcare to Local Hospital Employees

Abernathy Law Firm Addresses Compensation Concerns Raised During the Pandemic

Waxahachie ISD Provides Details on In-Person Learning

Featuring iteach TEXAS & Kelly Education

How Long Must School Districts Retain Records

Return to Full-time In-Person Walsh Gallegos Addresses In-Person Learning for the 2020-21 School Year

32

4 | HR Connection

Staff & Executive Board TASPA STAFF Dr. Lolly Guerra, Executive Director Chandelle Crane, Marketing & Communications Manager

TASPA EXECUTIVE BOARD Martha Carrasco, President, Canutillo ISD Max Flores, President-Elect, La Vernia ISD Al Rodriguez, First Vice President, Elgin ISD Kimberly Rich, Second Vice President, Dickinson ISD Bernadette Gerace, Secretary, Prosper ISD Rick Rodriguez, Immediate Past President, Lubbock ISD

TASPA DISTRICT REPRESENTATIVES VACANT, District I Dr. Tyrone Sylvester, District II, Goose Creek CISD Dr. Tamey Williams-Hill, District III, Austin ISD Johjania Najera, District IV, Keller ISD Chris Halifax, District V, Abilene ISD Craig Lahrman, District VI, Ysleta ISD

TASPA Committees

TASPA LEGISLATIVE COMMITTEE Sharon Fuery, District I, Southside ISD Dr. Casey O’Pry, District II, Clear Creek ISD Kayan McKreith, District III, Elgin ISD Dr. Philo Waters, District IV, Eagle Mountain-Saginaw ISD Brett Beesley, District V, Dumas ISD Bobbi Russell-Garcia, District VI, Ysleta ISD

5 | May 2021

TASPA Committees TASPA NOMINATIONS COMMITTEE Melissa Aguero-Ramirez, District I, Pharr-San Juan-Alamo ISD Barbara Ponder, District II, Barbers Hill ISD Michele Gilmore, District III, Burnet CISD Dr. Loraine Marazzano, District IV, Grand Prairie ISD Paul Kimbrough, District V, Canyon ISD Elvia Moreno, District VI, Canutillo ISD

TASPA SCHOLARSHIP COMMITTEE Charity Salinas, District I, Southside ISD Kelly Gabrisch, District II, Humble ISD Krista Marx, District III, Elgin ISD Monica James, District IV, Waxahachie ISD Paige TeBeest, District V, Amarillo ISD Celina Stiles, District VI, Socorro ISD

TASPA CONFERENCE COMMITTEE **Includes President, President-Elect & District Representatives Brandon Chandler, District I, Gregory-Portland ISD Dr. Nkrumah Dixon, District II, College Station ISD Krista Marx, District III, Elgin ISD Sandy Garza, District IV, Keller ISD Tori Adams (Para Rep), District IV, Keller ISD John Forbis District V, Canyon ISD Rosa Ramos, District VI, El Paso ISD

TASPA SBEC COMMITTEE Melissa Aguero-Ramirez, District I, Pharr-San Juan-Alamo ISD Cyndy Pullen, District II, Columbia-Brazoria ISD Rene Eakins, District III, Round Rock ISD Pamela Linton, District IV, Frisco ISD Rhonda Dillard, District V, Frenship ISD Jiovana Gutierrez, District VI, Ysleta ISD

6 | HR Connection

President’s Message express gratitude to all the teachers for the meaningful work they do every day to ensure the success of each and every child especially during this pandemic. Teachers are meaningful partners in the raising of our community’s children. They collaborate with parents and caregivers to keep families informed and contribute to a school climate that makes our students feel welcomed, safe, and valued.

New and exciting things happening at TASPA! Dr. Lolly Guerra and staff will be relocating the TASPA office to a new location reetings TASPA Members! The in the next few weeks. TASPA members roll-out of the COVID-19 vaccines are continuing to receive information and have offered school districts great hope for a full return to the physical updates pertinent to human resources classroom. The fact that these immunizations related to pending and newly enacted legislation through weekly updates, or have an efficacy rate of 95%, based on comprehensive trials, increases our optimism virtual workshops. We are gearing up for for a return to normalcy. The CDC states that the Summer Conference to be held at the the vaccines are highly effective at protecting Kalahari Resort on July 14-16, 2021. We are against symptomatic and severe COVID-19. excited that this will be our first face-to-face conference in over a year! In the fall, we are I suggest that the physical classroom will also planning the Support Staff Conference never resemble what we left behind so on October 4-5, 2021 at the Kalahari Resort. abruptly in March 2020. It will be better Please make sure to plan ahead and register equipped to serve the needs of all students early for these conferences. with technology and fortified by stronger teacher-parent partnerships. By necessity, I would like to encourage everyone working all of us took crash courses in the use of an in Human Resources to obtain or update a array of technology-based platforms and TASPA membership in order to not miss out applications. We have been dunked into the on vital information and opportunities related deep waters of the virtual. Because of this to our HR field. unintended educational experience, teachers Hope to see everyone soon. Stay healthy and will return to their campuses well-equipped to deploy what they learned during this crisis safe! and be better prepared to complement faceto-face instruction with technology.

G

During the first week in May we celebrate “Teacher Appreciation Week”. On behalf of Human Resources personnel statewide and the TASPA staff we would like to

Martha Carrasco Martha Carrasco is the 2021 TASPA President. She is the Chief Human Resources Officer in Canutillo ISD.

7 | May 2021

Calendar of Events For more information and updates on post-poned or virtual meetings due to COVID-19, please visit our webiste at taspa.org or call 512494-9353.

DATE

EVENT

LOCATION

May 27, 2021

Certification Fundamentals

Virtual

July 14, 2021

TASPA Summer Law Conference

Kalahari Resort, Round Rock, TX

July 14-16, 2021

TASPA Summer Conference

Kalahari Resort, Round Rock, TX

September 15, 2021

TASPA Documentation Basics

Lubbock ISD

October 4-5, 2021

TASPA Fall Support Staff Conference

Kalahari Resort, Round Rock, TX

December 8, 2021

TASPA Personnel Law Conference

Kalahari Resort, Round Rock, TX

December 8-10, 2021

TASPA Winter Conference

Kalahari Resort, Round Rock, TX

Thank you to our 2021 Conference Diamond Sponsors:

8 | HR Connection

Welcome New TASPA Members New TASPA Members (February 15 - May 14) James Anderson

Nathalia Hernandez

Dana Parrish

Katina Brown

Yasmin Herrera

Aleida Ramirez

Adrian Cerros

Anna Holmgreen

Tiffany Regan

Tiffany Cox Director of Human Resources

Jacqueline Horras

Kemp ISD

Director of Secondary HR Northside ISD

Teresa Rios

Amy Dunn

Ana Huffman

Monique Rubin

DeShonta Everett

Hallema Jackson

Melinda Salinas

Belinda Gamez

Jordan Kilgore

Darryl Simon

Sandra Guerra

Shayla McGrew

Shata Specks

Luis Guevara

Jenny McQuilkin

Kelley Theall

Sammie Haynes

David Moliere

Amy Tucker

Victoria Henderson

Rhonda Montgomery

Andrea White

Executive Director of HR Klein ISD Human Resources Director Marshall ISD Human Benefits/Records Clerk Canutillo ISD

Finance Coordinator Allen ISD Elementary Principal Houston ISD

Director of Human Resources West Oso ISD Coordinator Harlandale ISD

Director of Employee Relations Manor ISD Certification Manager Spring ISD Risk Manager Coordinator Manor ISD

Benefits & Billing Specialist Irving ISD Administrative Assistant Hereford ISD Executive Director of HR Alice ISD

Human Resources Assistant Alvin ISD Director of Human Resources Cedar Hill ISD

HR Manager Arrow Academy Director of HRS Pearland ISD

HR Specialist Lufkin ISD

Employee Engagement Coord.

Prosper ISD Certification Specialist Spring ISD

Administrative Services Specialist Region 9 ESC HR Specialist La Porte ISD

Assistant Superintendent for HR Deer Park ISD Certification Specialist Brazosport ISD Position Management Specialist Manor ISD Executive Director of HR Harlandale ISD

Director of Investigations Spring ISD HR Specialist Lufkin ISD

Human Resources Spring Branch ISD Assistant HR ESC Region 12 Director of Compliance and Policy Eagle Mountain-Saginaw ISD

10 | HR Connection

Meet TASPA’s New Program Director MARY TORRES

TASPA PROGRAM DIRECTOR

Maria “Mary” Torres was born in San Marcos, TX, and is a proud product of the San Marcos CISD (SMCISD) school system. As a high school student, Mary’s first job was working in the SMCISD Human Resources Department where she worked as a receptionist. Mary went on to graduate from Texas State University with a Bachelor of Science in Education and a Master of Training and Development from Texas A&M Commerce.

Mary spent many years as a classroom teacher in multiple elementary grades. She then went on to work in the SMCISD Human Resources Department as the Human Resources Training Specialist. As the HR Training Specialist, she coordinated the New Teacher Mentor Program, facilitated New Employee orientation for all new employees, coordinated and facilitated training for substitute teachers, and joined the department in recruiting and hiring. Mary enjoyed working in HR and found that working in the department where new employees were first welcomed to the school community gave her an opportunity to begin building relationships with their employees.

Additionally, Mary has worked in the private school system as a Director of Curriculum and, the Director of Diversity, Equity and Inclusion. These roles have given Mary experience in developing new programs, coordinating and facilitating professional development, and creating a culture of engagement and learning in her school.

ADVICE AND CHALLENGES IN HR: Mary Torres stated, “I believe that everyone working in a school system or for an organization that supports school systems, must always make decisions based on what is right for the students. I have worked in several capacities in education, as a teacher and as a school leader. I go into every position with the mindset; how are my decisions going to positively impact student learning and success? At TASPA, I look forward to carrying this same mindset in my new role. As an organization that supports school systems, how can we positively impact students’ success at their schools. I look forward to using my expertise to create informative and innovative professional learning experiences for Human Resource leaders that will ultimately support excellence in education for Texas school students.”

During her free time, Mary enjoys spending time with family and friends, reading the latest Kristin Hannah novel, shopping at Central Market and listening to podcasts. She looks forward to meeting our members at the upcoming TASPA events.

WELCOME MARY! TASPA IS EXCITED TO HAVE YOU JOIN OUR FAMILY!

11 | May 2021

TASPA is Moving!

We are excited to announce that the TASPA office is moving to a new location. We started this labor of love in 2019 after the TASPA Board voted to allow TASPA to purchase a building, rather than continuing to lease.

After 2 years of Covid-19 delays and City permitting issues, we are finally closing on our brand new office condo. We will be moving in on June 1!

Please note our new address: 8701 Menchaca Rd, Bldg. 2, Ste. 103 Austin, TX 78745 Our phone number remains the same: (512) 494-9353

12 | HR Connection

New Member Spotlight

ALISON SIMS ABILENE ISD

Alison Sims has served Abilene ISD for 24 years. She has spent five years as an elementary school teacher, eight years as a school counselor, and four years as an instructional coordinator. As an administrator, she served four years as an elementary principal at Allie Ward Elementary School, and then moved to district administration as Executive Director of Elementary Education. In November, her superintendent asked her to move to Executive Director of Human Resources, serving a district of over 14,000 students and around 2,500 employees.

“I am so excited to embark on this exciting new role! I am also a wife to Jon who is a lieutenant on the Abilene Fire Department and a mom to two boys, Jonas (21) and Landry (9).”

ADVICE TO THOSE NEW TO HR: Dedicate your first year to getting “down and dirty” – roll up your sleeves and get in there with your staff and ask “Why?” of every process so that you can understand why they do what they do. You will learn the “what needs to get done” at TASPA’s conferences, meetings, and trainings /with TASB support. After that first year you can work on adjustments accordingly. I lovingly remember my first year- best advice I got was “just get through the first year and every year after that will be easier because it’s the same thing”. Well, we joke that 21 years later it isn’t easier because every year has brought on new adventures BUT it is true – there are things we do annually at the same time every year. You need to LOVE what you do!

CURRENT CHALLENGES IN YOUR DISTRICT?: “The biggest challenge facing our district right now is the loss of enrollment we have experienced due to COVID. Our district has lost nearly 900 students, and with that loss comes a major adjustment to budgeting – which translates largely to staff. Finding the right balance of losing positions due to retirement and resignation and staffing with recovery of enrollment in mind is certainly a challenge. It is an exciting time to move into human resources because it is like putting together a huge puzzle that changes daily. I love what I do because I learn something new every day, and I enjoy working with people, especially principals, to help them solving their staffing needs.”

EXPECTATIONS WITH TASPA MEMBERSHIP?: “I hope that TASPA will be an excellent source of professional learning, networking, and support as we all are facing similar challenges. I especially look forward to some in-person conferences where networking is easier, and I have the opportunity to look ahead to long-range planning for the success of my district.”

13 | May 2021

Member Spotlight RHONDA DILLARD FRENSHIP ISD

Rhonda Dillard is presently the Assistant Superintendent of Human Resources in Frenship ISD. Rhonda has been an active member of TASPA and served on various committeess.

She served on the Scholarship Committee from 2016-2018. She has served on the SBEC/Certifications Committee since 2014 and is the current chairperson. She also is an active member of West Texas TASPA and served as president for 3-4 years.

ADVICE TO THOSE NEW TO HR: “People are our greatest resource and we are responsible for serving the students, staff, parents and community. As you enter the HR world, be ready to be flexible and to collaborate about processes. Review the processes and procedures within the department to determine if you can improve the efficiency of the department to better serve the people. Be prepared to attend many meetings and learn new things daily. Join TASPA and make connections to assist you to begin to learn about HR and make HR related decisions. Have your attorney on speed dial and document, document, document… Don’t be afraid to ask questions…that is how we learn.”

CURRENT CHALLENGES IN YOUR DISTRICT?: • Recruiting and retaining highly qualified substitute teachers continues to be a challenge for Frenship. I take it very personally if a class is not covered while the teacher is absent because I am partially responsible for ensuring that students receive quality instruction. The principals work their magic at the campus level and cover when subs are not available but this is an area of concern.

• Finding highly qualified applicants for hard to fill areas has been a challenge at times. The applicant pool is shrinking and HR is having to be creative on how to recruit to our profession. During the last year, HR recruited virtually and hired more alternative certified applicants due to a shortage of applicants.

• Staffing is a challenge due to the Pandemic and not being able to predict the student numbers for the upcoming year.

HOW HAS TASPA BENEFITED YOU?: “I was a principal before entering the HR world. I have spent 38 years in education with 12 of those years being in HR. HR is definitely a different and exciting world. It is important to make connections with other HR personnel in order to gather information and not reinvent the wheel. TASPA helped me to meet and make connections with other HR people, to attend conferences/workshops that taught me about HR, to attend legal conferences to stay up to date, to work on committees, to make life-long friends and to give feedback and be a part of the decision making processes in regards to Education.”

14 | HR Connection

Partnerships in the Pandemic

Lubbock ISD Board of Trustees approved the agreements for providing childcare for local hospital employees

W

ho knew school districts would be forced to close their buildings to students during a pandemic during the 2019-20 school year. As the district’s chief operations officer, Rick Rodriguez was charged with coordinating the opening of two Lubbock ISD elementary schools to provide a safe childcare facility to allow healthcare workers to feel comfortable in dropping off their child (children).

Lubbock Independent School District trustees executed a memorandum of understanding (MOU) with Covenant Health System to provide childcare for its employees that started April 15 due to the COVID-19 medical

emergency.

Beginning April 1, Lubbock ISD paraprofessionals and employees of Covenant Health staffed a childcare center at Ramirez Elementary

School. The center was staffed between 6:30 am - 6 pm, Monday through Friday. Covenant Health estimated that 145 children, between the ages of 4-14, were served.

15 | May 2021

Lubbock ISD and University Medical Center Walt Cathey, Covenant Health CEO for the Lubbock (UMC) began operating a childcare center for UMC region, said, “We appreciate Lubbock ISD stepping employees on March 30 under a similar MOU at up to fill a need in our community. We need our Miller Elementary School. Miller served about 50 frontline caregivers focused at work and they can do children per day and remained in operation for the that now with peace of mind that their children are remainder of the school well taken care of.” year. UMC estimated that UMC CEO Mark 170 children, between the We understand the importance Funderburk added, “UMC ages of 4-14, were served of our school closure as part is grateful for the support in total. of our community and of the statewide strategy to The childcare programs our friends at Lubbock slow the spread of COVID-19, provided breakfast ISD. We know these times but we also feel strongly about and lunch through are difficult for our staff, supporting the families of our Lubbock ISD, Aramark especially those who have local healthcare workforce as Corporation, and children that aren’t in Durham Transportation’s school right now. Because they work tirelessly to care for COVID-19 meals of this partnership, we are those in our community who program. Strict protocols able to offer much needed need it the most.” were in place to promote childcare.” social distancing.

It was through innovative Everyone entering the thinking and through a trusting partnership that the childcare facility was stood up during a period of time when most school facilities across the state of Texas were closed due to the pandemic. In the unprecedented times like these, we see how the creative partnerships can be fostered in order to meet the community’s needs. It furthers the Lubbock ISD mission to nurture, develop and inspire Every Child, Every Day!

school had their temperature taken before they were allowed access and only approved childcare providers were allowed inside the building. No more than eight children and two adults were in a room to ensure compliance with social distancing requirements at the time.

The childcare operations were administered by Lubbock ISD campus principals. Lubbock ISD paraprofessionals were allowed to apply for this special project with additional compensation provided by the hospital organizations.

“We understand the importance of our school closure as part of the statewide strategy to slow the spread of COVID-19, but we also feel strongly about supporting the families of our local healthcare workforce as they work tirelessly to care for those in our community who need it the most,” said Lubbock ISD Superintendent Dr. Kathy Rollo.

Photos and video are used with expressed permission from UMC Health Systerm and Lubbock ISD. TASPA would like to thank Rick Rodriguez, Chief Operations Officer, Lubbock ISD, and Aaron Davis, FACHE, Chief Experience Officer, UMC Health System for their contributions to this article and video.

16 | HR Connection

COVID-19, Workers’ Compensation, & Related Issues a. Temporary Income Benefits, which provide payment if work-related injury or illness causes an employee to lose some or all of his/her wages for more than seven days; b. Impairment income benefits, which provide payment if a work-related injury or illness affects the employee’s body as a whole;

Rebecca Baily, Attorney (with input from Chad Timmons)

A

midst the COVID-19 pandemic, a lot of questions have been raised regarding the effects of COVID-19 on the operations of school districts and charter schools across the state. One of the unknown and currently unlitigated areas of the law includes workers’ compensation benefits for COVID-19 claims. New legislation is proposed that would broaden workers’ compensation coverage for school employees related to the infection of COVID-19 in the school setting. The new legislation could greatly affect school district’s budgets and funding moving forward.

A QUICK PRIMER ON WORKERS’ COMPENSATION BENEFITS

c. Supplemental income benefits, which provide payment on a monthly basis after an employee’s impairment income benefits end and an employee meets the requisite qualifications of having an impairment rating of 15% or more, having not returned to work, or if an employee did, having earned less than 80% of the average weekly wage in your position because of an employee’s injury, show that an employee is looking for work; and an employee has not accept a lump sum payment for his/her injury; d. Lifetime income benefits, which provide payment for the life of an employee that has one of the requisite injuries: i. total and permanent loss of sight in both eyes; ii. loss of both feet at or above the ankle; loss of both hands at or above the wrist; iii. loss of one foot at or above the ankle, and loss of one hand, at or above the wrist; iv. an injury to the spine that causes permanent and complete paralysis of both arms, both legs, or one arm and one leg; v. a physically traumatic injury to the brain resulting in incurable insanity or imbecility;

vi. third degree burns that cover at least 40 percent of Recovery of workers’ compensation benefits is the the body and require grafting; or exclusive remedy of an employee covered by workers’ vii. third degree burns covering the majority of either compensation insurance against the employer for death both hands or one hand and the face. or a work-related injury sustained.1 Under the Texas 2. Medical benefits, which provide payment to doctors Workers’ Compensation Act, all public and federal or facilities that provide an employee treatment for employers are required to carry workers’ compensation work-related injury or illness4, insurance coverage.2 Under workers’ compensation, there are four types of benefits that may be awarded to an 3. Burial benefits, which provide payment for funeral employee: expenses5, and 1. Income benefits3, 4. Death benefits, which provide payments to an Tex. Labor Code § 408.001.

Tex. Lab. Code Ann. § 406.002 3 Tex. Labor Code § 408, subchapters E-I. 4 Tex. Labor Code § 408, subchapter B. 5 Tex. Labor Code § 408, subchapter J. 1 2

17 | May 2021

employee’s family to replace some of the income lost when an employee dies due to a workrelated illness or injury6.

If COVID-19 is found to be a compensable injury, employees of school districts may be entitled to one or more of the workers’ compensation benefits outlined above. Several of the benefits may result in long-term payment to an employee or an employee’s family in light of the long-term effects linked to COVID-19.

HOW BIG IS THE PROBLEM RELATED TO COVID-19 AND WORKERS’ COMPENSATION CLAIMS?

public administration.10 Until a decision is issued regarding whether COVID-19 is a compensable injury, a significant number of claims may still be in process or may arise as the COVID-19 variations and other changes sweep across the country.

IS COVID-19 A COMPENSABLE INJURY UNDER WORKERS’ COMPENSATION? It depends. All workers’ compensation cases must be handled on a case-by-case basis. However, below is a general analysis that provides the framework for the determinations.

In the Texas Workers’ Compensation The Texas Department of Insurance System, a compensable injury is “an injury that arises out of and in the (“TDI”) compiled data and created course and scope of employment a report regarding COVID-19 in and for which compensation is the Texas Workers’ Compensation payable.” 11 The definition of System, which was updated as “injury” includes an occupational recently as December 2020. Since disease.12 An “occupational disease” January 2020, according to TDI, worker’s compensation claims are is a “disease arising out of and in the course and scope of employment 14% higher than the same period in 7 2019. Despite mandated closure that causes damage or harm to the for many employers, insurance physical structures of the body . . carriers reported approximately . . The term includes a disease or 32,438 COVID-19 claims with the infection that naturally results from highest claims being asserted in July the work-related disease. The term 2020.8 42% of the claims reported does not include an ordinary disease by insurance carriers were claimed of life to which the general public by political subdivisions, although is exposed outside of employment, the type and nature of the political unless that disease is incidental to a subdivisions were not further divided compensable injury or occupational or reviewed.9 Only 5% of the disease.”13 Standing alone, an claims were related to “educational ordinary disease of life to which services,” while the most were in the general public is exposed does

not become compensable simply because an employee alleges she contracted the disease at work.

To be an occupational disease the disease must be inherent in, or indigenous to, the claimant’s specific employment, rather than employment generally.14 Alternatively, the disease must be present in claimant’s specific employment to an increased degree as compared to employment generally.15 The definition of occupational disease, therefore, incorporates a concept from the positional risk test.16 Because COVID-19 is not inherent in or indigenous to any specific type of employment, an employee claiming COVID-19 is an occupational disease must meet the latter test by showing the disease is present to an increased degree in the workers’ specific employment.

Assuming the employee can show COVID-19 is present to an increased degree in the worker’s specific employment, the worker must show actual exposure to COVID-19, and that the worker actually has the specific COVID-19 strain to which she was exposed.17 The applicable causation standard will require showing that the workplace exposure was a substantial factor in bringing about specific COVID-19 strain, and without which the worker would not have contracted that COVID-19 strain.18 Expert evidence is necessary to establish causation as to medical conditions

Id. https://www.tdi.texas.gov/wc/reg/documents/covid19txwc1220.pdf 8 Id. 9 Id. 10 Id. 11 Tex. Labor Code § 401.011(10).

12 Tex. Labor Code § 401.011(26).

13 Tex. Labor Code § 401.011(34) (emphasis supplied).

14 DWC Appeal No. 94309 (decided 04/29/94).

15 Id. 16 Under the “positional risk” test, a court determines if the injury would have occurred if the conditions and obligations of employment had not placed the claimant in harm’s way.

Employers’ Cas. Co. v. Bratcher, 823 S.W.2d 719, 721 (Tex. App.—El Paso 1992, writ denied) (citing Walters v. American States Insurance Company, 654 S.W.2d 423 (Tex. 1983); N. River Ins. Co. v. Purdy, 733 S.W.2d 630 (Tex. App.—San Antonio 1987, no writ). This amounts not only to looking at the environment in which the employee resides prior to the injury occurrence, but also the inevitability of the injury given the employee’s environment. See generally Appeal No. 040410, decided April 12, 2004 (observing that the purpose of the test is to ensure there is some connection between the work and the risk of injury); DWC Appeal No. 030068 (decided Mar. 3, 2003) (observing that “the fact that an injury occurs while performing a work-related function that is controlling, and to that an injury might not have been sustained by someone else performing the same function or that one might confront a similar situation elsewhere”); Appeal No. 001002, decided in 2000 (observing that the “but for” test set out in Bratcher is “indicative of the inevitability of the injury as opposed to the possibility that it could occur elsewhere.”).

17 See Schaefer v. Tex. Employers’ Ins. Ass’n, 612 S.W.2d 199 (Tex. 1980) (noting no evidence existed to establish that the particular strain of tuberculosis that claimant had was present in the soil where he had worked).

18 Trans. Ins. Co. v. Crump, 330 S.W.3d 211 (Tex. 2010).

19 Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007).

6 7

18 | HR Connection

outside the common knowledge and experience of the fact finder.19 When expert evidence is required, proof of causation must be established to a reasonable degree of medical probability.20 The identification of the specific strain of COVID-19 is beyond the common knowledge and experience of the fact finder require expert medical evidence based on a reasonable degree of medical probability.

Putting all of this together, the worker must show: 1. COVID-19 was present to an increased degree in the workers’ specific employment, 2. The worker was exposed to the disease by a known carrier of the disease, 3. The worker contracted specific strain of COVID-19 to which the worker was exposed, and 4. The workplace exposure to COVID-19 was a substantial factor in bringing about the specific COVID-19 strain which the worker contracted and without which the worker would not have contracted that COVID-19 strain.

It is important to note, exposure or quarantine required from exposure to COVID-19 is not compensable under Workers’ compensation since no compensable injury exists until the actual contraction of COVID-19. However, compensation may be available for exposure and subsequent quarantines pursuant to a school district or charter school’s local resolution.

WHAT NEW LEGISLATION IS PROPOSED TO ADDRESS COVID-19 AND WORKERS’ COMPENSATION? Senator Zaffrini recently introduced legislation to revise the Texas

Labor Code to create a presumption that would entitle school district employees to workers’ compensation benefits related to COVID-19.

Specifically, SB 612 seeks to presume that a school employee contracted COVID-19 on or after February 1, 2020, contracted it within the course and scope of their employment if the following conditions are met: 1. The employee interacts with a student or employee who is later diagnosed with COVID-19; and 2. Contracts COVID-19 not later than the 14th day following the date of the interaction with the student or other employee diagnosed with the disease.

exposure and maintain the safety of employees, while maintaining school district operations. The proposed legislation could have widespread impact on school district budgets moving forward.

BEST PRACTICES IN RESPONDING TO WORKERS’ COMPENSATION CLAIMS RELATED TO COVID-19 1. File your disputes in a timely manner; 2. Investigate claims thoroughly and utilize medical providers, when necessary;

3. Be mindful of statements or reassurances to employees that the District or Charter School A “school employee” in the proposed will “take care of them,” or other legislation is defined as a “person similar platitudes; who receives compensation for a 4. Maintain appropriate, dated service performed, other than as an documentation; independent contractor, for a school 5. Consult legal counsel early, district. SB 612 also proposes to whenever necessary; and create the presumption as rebuttable if based on the preponderance of the 6. Maintain separate processes for evidence that a risk factor, accident, handling workers’ compensation or other cause not associated with claims and ADA accommodations the individual’s service as a school to the maximum extent possible. employee was a substantial factor CONCLUSION in bringing about the employee’s illness, without which the disease Overall, the COVID-19 continues or illness would not have occurred. to stretch the fabric of existing law Then, in an administrative hearing and we anticipate it will continue to based on the rebuttal offered, a be the impetus for new legislation qualified expert would need to make during the current legislative session. a statement based on reasonable Administrative hearings are currently medical probability that the in progress and clarity regarding the identified risk factor, accident, or compensability of COVID-19 under other cause was a substantial factor workers’ compensation may become in bringing about the individual’s clearer. However, at this time, within disease or illness. the framework that is currently provided, specific elements must be The proposed legislation, if established for employees to receive adopted would provide workers’ compensation for COVID-19 and its compensation coverage to many potentially long-term effects. teachers and other school district employees for the contraction of COVID-19. The question then becomes how to mitigate the risk of

City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.—San Antonio 2009, no pet.). See also DWC Appeal No. 92187 (decided 06/29/92) (as in the case of causation of injuries generally, if the cause, progression, or aggravation of the disease is outside of the common knowledge and experience of the fact finder, expert medical evidence based on a reasonable degree of medical probability is required).

20

A FIRM COMMITTED

We deliver what you need most: representation that addresses your problems and provides protection for your interests. Our philosophy is based on our commitment to providing personal attention to the employment relations needs of every client.

About Us

Employment Matters

Policy Development

Review and Revision of Handbooks and Related Documents

Hiring, Discipline, and Termination

Abernathy, Roeder, Boyd & Hullett, P.C., traces its roots to 1876, making it one of the oldest law rms in the southwest. We are dedicated to providing our clients with representation of unsurpassed quality and effectiveness. Located in McKinney, Texas, we have grown to be one of the largest law rms in Collin County. Our lawyers act as the general counsel for many area districts and we use our many years of experience in this eld to provide clients with knowledgeable assistance in all education legal matters.

Contact Us 214.544.4000 www.abernathy-law.com

20 | HR Connection

Vaccination Brings New Proto Waxahachie ISD “Is it required that I get a vaccination?”

“How do I get a vaccine?”

“Do I still have to wear a mask?”

“Do I still have to quarantine if exposed?”

The benefits team worked in conjunction with our director of nursing to update our policies, processes, and procedures related to vaccinations.

HOW HR BECAME THE VACCINATION INFORMATION HUB FOR WISD

Theresa Burkhalter Director of Human Resources Waxahachie ISD

T

his year has brought many new challenges and questions for our HR department. Knowing that we would be involved with in-person learning from the beginning, we wanted to be prepared for anything that might happen during the school year. We took the opportunity to standardize as many of our systems as we could to make the reporting processes as easy as possible for our employees. We relied heavily upon PowerSchools Records to create new forms to help with Emergency Paid Sick Leave and vaccinations.

a user answered “yes” to having any symptoms of Covid-19, the user was directed to speak with the campus nurse and their computer automatically turned off. HR was notified of any “yes” answers, giving us the opportunity to follow up with the employee within minutes. The pop-up gave us documentation that every employee who logged in had completed a Covid Self-Check each day.

For those employees who did not have regular access to a computer such as bus drivers, maintenance, and substitutes, we instituted a google form that they used as their daily Covid Self-Check. To date, the form has well over 55,000 daily check-ins.

COVID DAILY SELF-CHECK

PIVOT: VACCINATION

Waxahachie ISD worked with our technology team to develop a Covid-19 Self Check that popped up upon daily computer login. If

With the new vaccinations, came new questions such as: “Do you need a copy of my card?”

During Phase 1A and 1B, we were contacted by the Emergency Management Coordinator for the City of Waxahachie. The city wanted to make sure that our teachers and staff had the first opportunity to receive any extra vaccine doses that were available after all scheduled doses were distributed. We developed and managed a google form and coordinated efforts with Baylor, Scott, and White Hospital to get a vaccine to any staff member who desired it. In this time, we were able to get about 75 staff members vaccinated.

During Phase 1B plus teachers, we coordinated efforts with Baylor, Scott, and White, Waxahachie Pharmacy, and HEB grocery. The entities would let us know how many vaccines and the type of vaccine they had available. We would share this information with our staff along with information about how to get signed up.

21 | May 2021

ocols and Procedures to Once vaccinations opened for all Texans, we continued to communicate regularly with our local vaccine providers to notify staff of available vaccines.

NEW PROTOCOLS As we discussed new protocols and documentation for vaccinated individuals, it was determined that: • Our staff would not be required to obtain a vaccination • Vaccinated individuals would not be required to quarantine when directly exposed unless they became symptomatic.

• The district determined that masking requirements would stay in place for the remainder of the school year.

• Staff members were asked to voluntarily share a copy of their vaccination cards. So far, approximately 13% of our staff have participated.

• We used PowerSchools Records to create a form for our staff to submit their vaccination documentation.

The following fields were included – name, date of birth, job title, location, vaccine dates, vaccine type, photo upload of vaccination card.

NEW QUESTIONS As we worked through documenting vaccinations, new questions arose such as, “What will you do with this information?”, “What is an upload?” and “What happens if I don’t want to be vaccinated?”

We used this opportunity to talk with and educate staff members about the technology issues along with addressing concerns and fears about their personal information. We explained that the vaccine and documentation are not required, but individuals who choose not to become vaccinated they may have a financial impact when emergency paid sick leave is not renewed.

CONCLUDING THE SCHOOL YEAR We concluded our year having offered face to face instruction throughout the entire 2020-21 school year. In 2020-2021, Waxahachie ISD did not experience any closures or shut downs due to Covid-19. We credit the collaboration between the HR-Benefits team and the Director of nursing with helping to keep staff members and students in school throughout the year.

22 | HR Connection

Diamond Sponsor Spotlight iteach® Teachers Make a Difference We often receive letters from our iteach course completers. We hear positive stories all the time about how much they love their jobs. At iteach, our goal is to remove the barriers that often inhibit people from being able to get into the classroom and do something they are passionate about. When we get stories like the ones below, we know we are on the right track to helping people become successful in and out of the classroom.

“

I am so appreciative of all iteach did to prepare me for teaching…

Hi All - I wanted to share some exciting news. I completed my teaching certification through iteach in 2019 and was hired to teach 7th grade science at Jackson Technology Center for Math and Science in Garland ISD. Ms. Brown was my iteach mentor.

Yesterday, I was awarded the 2021 Texas Instruments Innovation in STEM Teaching Award. I wanted to share a couple pics from the presentation yesterday in my classroom. Apparently, I will be attending a formal GISD Board meeting where they will present it to me formally. I was so surprised as I figured it was a long shot as Jackson has won the award twice in the past and am over the moon with excitement, already dreaming up all the wonderful things I can do in the classroom with the award.

I am so appreciative of all iteach did to prepare me for teaching, the instructors of each of my classes for developing great programs and pushing us to really think about the complex issues they were teaching, and especially the advice and support from my mentor Ms. Brown.

I just wanted to share my happy news.

All the best, Gwen

“

Thank you for All That You Do I Appreciate the Opportunity...

I appreciate the opportunity that iteachTEXAS has given me. You better believe it is listed in my resume.

Sincerely, Lori Garrett Cactus Elementary, Dumas ISD Science & Enrichment

“

iteach...Plays Well with Others As a district in Texas that employs over 2,000 teachers, we rely heavily on iteachtexas to fill our 200+ certified teacher openings each year. We see candidates from many alternative certification programs, and I can absolutely say that candidates from iteachtexas are prepared for the classroom and exhibit high quality teaching and classroom management strategies. iteachtexas provides invaluable support for both candidates and districts from application to hire. We highly recommend iteachtexas as a ‘go-to’ partner in teacher hiring.

Chris Tatum Exec Director HR – Amarillo ISD

Sometimes we get people who ask us why we push them so much. Why is our program so comprehensive? The simple answer...We want you to succeed.

“

Here is a comment from an iteach graduate Good morning!

I just wanted to reach out to you and let you know I did pass the EC-12 Art exam. However, I do not think I would have studied as much as I did if you did not warn me how hard the exam was. Because of your warning, I really took a lot of time to really understand the depth of the material instead of just memorizing facts. I have learned so much this year and have had so much fun in this position. I just wanted to thank you for the warning and thank you for all that you do!

Have a great week!

Courtney Green

Our Mission To be a trusted partner committed to providing joy of learning, positively impacting student achievement, and preparing educators for a lifetime of success.

24 | HR Connection

Diamond Sponsor Spotlight

Hello, Texas educators and HR leaders, Kelly® Education believes a talented workforce is the key to facing the challenges in education. With more than 20 years of education staffing experience, Kelly Education is the trusted source in workforce solutions.

As the largest education talent solutions company in the U.S., we place more than 4 million education roles across all levels of the education system. From substitute educators and paraprofessionals to tutors and school nurses, our innovative workforce solutions are designed to address all areas of your organization—when and where you need it.

Through rigorous vetting and ongoing professional development, we ensure our partners always have access to superior candidates they can trust. We bring the best practices in talent engagement, cost savings, predictive supply and demand analytics, and more. We’re the experts in finding talent, so you can get back to the important—vital—work of educating our future.

It’s no secret that the pandemic has changed education forever. As leaders, you were forced to rethink how to educate students almost overnight. From developing remote learning tools and instituting clean classroom protocols, to providing lunches and filling growing staff vacancies—you found creative, innovative solutions to ensure learning continued and your communities stayed safe.

We all know the work is never done. At Kelly Education, our goal is to understand the issues facing our schools, and to partner with districts to solve these challenges. Our research shows the pandemic has revealed three major shifts in education: • There’s an educator shortage. In Texas—and across the country—teachers are leaving their jobs, while more students are also requiring the expertise of paraprofessionals. Sourcing these roles is a burden for districts, especially as fewer people are enrolling in teaching degrees.

• Students are falling behind. Today’s students are predicted to lose as much as a year from learning, as a result of shutdowns and extended periods of remote instruction. Some students will require gap tutoring to catch up.

• The revaluation of education. A disruption to the school system has untold ripple implications. The world now knows that education and school districts are paramount to the success of our communities. Schools are no longer simply important; they are vital to society as a whole.

Let’s get back to learning. Kelly Education can help.

“

We are one of the largest school districts in the nation. Our district has maintained a relationship with Kelly for 13 years. The Kelly Education team has provided exceptional customer service. They are flexible and continually change and adjust their program to meet our needs. They have filled nearly 2 million absences with an average fill rate of 96.6 percent.

”

- HR Projects Director

Bryan McCaskill Strategic Sales Manager - North Texas Mobile 903.331.1449 Email bryan.mccaskill@kellyservices.com

Marnie Watson Strategic Sales Manager - South Texas Mobile 281.299.2736 Email marnie.watson@kellyservices.com

kellyeducation.com An Equal Opportunity Employer © 2021 Kelly Services, Inc. All rights reserved CM-944

Daniela Barbosa Account Executive Mobile 713.805.1434 Email daniela.barbosa@kellyservices.com

Texas talent

that moves education forward.

Retain your high-quality talent.

Restore student learning loss.

Revalue education.

We’re not just a staffing company. We’re education talent experts, strategists, and partners. As the leading provider of workforce solutions, we supply innovative talent, provide busy administrators with peace of mind, and help district leaders stay ahead of the curve.

Contact us today to get started:

Let us help you, your staff, and your students face what’s next.

kellyeducation.com

kellyeducation.com An Equal Opportunity Employer © 2021 Kelly Services, Inc. All rights reserved CM-908

Daniela Barbosa 713.805.1434 Bryan McCaskill 903.331.1449 Marnie Watson 281.299.2736

The Effects of Inefficiencies on School Administrators Missing a few hairs on your head?

You might be spending time pulling out your hair dealing with a temperamental printer.

Relentless compliance deadlines can induce brain fog.

Struggling to recruit for open positions may lead to a heavy heart.

Work-life balance might feel out of reach — an ever-increasing workload induces a feeling of walking along an endless tight rope.

Thanks to late nights at the office and early mornings, administrators rarely get the recommended 8 hours of sleep — and wake up feeling like they have bags under their eyes.

Aches and pains pop up due to the physical strain of lugging around heavy piles of paper.

Endless manual data entry induces soreness in fingers and hands.

Constant dull aches in the pit of your stomach are common when every season brings a fresh set of challenges.

What would your day-to-day look like if you could make inefficiencies a thing of the past?

With only so many hours in a day, you need to be able to make the most of your time — not only for the sake of your district, but also for your own sake.

There’s a better way!

FrontlineEducation.com/HCM

27 | May 2021

TO YOUR DISTRICT’S SUBSTITUTE STAFFING STRUGGLES.

TO THE SUBSTITUTE COVERAGE YOU NEED.

Discover why 21 Texas school districts partner with ESS to provide the substitute coverage they need during the pandemic. We tailor recruiting strategies to your community, advertise district safety measures and testimonials from current substitutes, and train substitute teachers, paraprofessionals, and support staff to succeed in virtual and hybrid classrooms.

Contact us today and let ESS provide your District the support you need this school year.

Fred Bentsen, Vice President of Business Development FBentsen@ESS.com | 832.244.5015 | ESS.com

28 | HR Connection

Employee Record Retention Roulette

Jennifer Powell, Attorney, Shareholder Emma Darling, Associate Attorney

L

ong gone are the days we kept entire rooms full of filing cabinets to house our employee records, but the laws regarding record retention are still on the books. What are some of the most common employee records, and how long must a school district retain them? The answer to these questions is found either in the Texas State Library and Archives Commission (TSLAC) records retention schedule or in federal law. TSLAC publishes detailed record retention schedules, some of which are applicable only to school districts (SD series) and some of which are applicable to all local government entities (GR series).

These schedules can be found at https://www.tsl.texas.gov/slrm/ localretention.

PERMANENT RECORDS TO RETAIN First there are permanent records, the records you must maintain regardless of how long a teacher has no longer been with the District. These records include teacher performance appraisal records (including documentation submitted by the teacher), service record affidavits, teacher certificate registers, teacher certifications, and audit verification cards. Some of these are less worrisome than others: for example, the service records that you must keep permanently are affidavits attached to teacher service record claiming months served prior to the 1949-50 school year.

and observation notes for student teachers must be kept for five years after the date of completion, withdrawal, discharge, or release from the program.

• PEIMS data submissions must also be kept for five years.

Surveys, questionnaires, opinion polls, and similar documents received from the Texas Education Agency or other agencies, completed and returned by the superintendent or other school official, and used by the surveying agency for the preparation of needs assessments or statistical reports and not for the specific purpose of monitoring compliance with a required or grant-funded 5+ YEARS program in the respondent district must be kept for five • Alternative certification program years. applications, transcripts,

29 | May 2021

• Requests and authorizations for vacation, compensatory, sick, Family and Medical Leave Act (FMLA), and other types of authorized leave, and supporting documentation must be kept until the end of the fiscal year the leave was requested for plus five years after that. Please note that any documents containing medical information must be kept in a separate confidential file.

• Transcripts of persons hired if state or federal law or regulation mandates a level of education needed to qualify for employment (e.g., school district professional and paraprofessional personnel) must be kept from the date of separation plus five years.

• A record containing the following payroll information on each employee: name, last known address and social security number, amount of wages paid to the employee for each payroll period, including all deductions, and date of payment must be kept for five years.

• Master payroll registers and subsidiary registers, including year-to-date registers must be kept for five years.

years. Life, health, accidental death, and disability insurance information must be kept from the date of the plan’s termination plus four years.

Any other benefit plan information besides those listed above must be kept until superseded, or separation of employment plus two years.

• Unemployment claims, pertinent correspondence, and similar records documenting unemployment compensation cases must be kept from the date of the case’s closure plus five years.

• Records of workers compensation claims filed by employees, including any reports or investigations used to determine eligibility are also complicated.

If the District is self-insured, then the records must be kept until the claim is closed plus fifty years. If the District is not self-insured, then they must keep the records from the date of closure plus five years. The initial and supplemental incident forms, reports, or logs must be kept for five calendar years only.

• Out-of-state teaching certificates must be retained until replaced by Texas teaching certificate or until the date of separation plus five years, as applicable.

• Requests and authorizations for travel; participation in educational programs, workshops, 3+ YEARS or college classes; or for other bona fide work• Both personnel and substitute teacher rosters must related activities in which the expenses of an be kept for three years. employee are defrayed or reimbursed must be kept until the end of the fiscal year requested plus • Absence from duty reports must be kept for four years. five years.

• W-2s and 1099 forms have a record retention • Employment applications, summaries of requirement of four years. W-4 forms have recruitment efforts, job postings, newspaper a retention requirement of four years after advertisements, job orders with the Texas separation or four years after form amended, Workforce Commission, and correspondence with whichever is sooner. the U.S. Department of Labor and attorneys must • Self-evaluations and plans documenting be kept for the date of the filed application plus compliance with the requirements of the five years.

Americans with Disabilities Act must be kept for • School bus driver training certification three years. verifications must be kept until they expire, or • Professional growth plans must be kept for four termination of the employee plus five years. years.

• The Teacher Service Record (Texas Education • Records for the equal employment opportunity Agency Form FIN-115 or its equivalent), matters have their own retention schedule. Any containing information required by statute or case files relating to discrimination complaints, regulation, must be retained from the date of including complaints, legal and investigative separation plus seventy-five years. documents, exhibits, related correspondence, withdrawal notices, and decisions or judgments • Employee benefit plans are complicated, and must be kept for three years after the resolution of span depending upon the information for the case. different periods of time. Pension and deferred compensation information must be kept from the • I-9 forms must be kept for three years from the hiring date, or one year after separation, date of employee separation plus seventy-five

30 | HR Connection

whichever later • Employment contracts must be kept until the last effective date of the contract plus an additional four years.

• Non-teacher employee evaluations must be kept until superseded plus two years or until the date of separation plus two years, whichever is sooner.

• Personnel action notices, also known as documents used by personnel officers to create Correspondence, schedules, rosters, or change information in the personnel records reports, records of participation, and similar of individual employees concerning hiring, documentation, except financial records termination, transfer, pay grade, position or (see Local Schedule GR), concerning the job title, leaves of absence, name changes, and participation of a district in academic, music, and similar personnel actions shall be kept for two athletic contests and programs governed by the years from the date of creation or the personnel University Interscholastic League must be kept action involved, whichever is later. for two years.

• Training and professional development records Records on which wage computations are based shall be kept for two years. should be retained for two years, i.e., wage rate • Disciplinary records for employees shall be kept tables, work and time schedules, and records of for two years after the case is closed or action additions to or deductions from wages. taken, as applicable.

Appraisal observation/evaluation forms • All personnel records existing on the date of (including documentation submitted by the termination of an involuntarily terminated teacher) must be kept for two years or two years employee must be retained for two years from from the date of separation, whichever is sooner. the date of termination.

But note, as discussed above, the final appraisal record must be kept permanently.

1 YEAR Notes taken by appraisers during observations • Criminal history checks must be destroyed or similar written documentation created by the one year after received or after the date the teacher’s supervisor that, in combination with information was used for the authorized purpose, the formal observation, is used to determine whichever is sooner. credit for the criteria and indicators on the CONCLUSION observation/evaluation forms must be kept for two years after the date the teacher signs for Employee record retention is strictly prescribed, and receipt of observation/evaluation. Again, note Districts are still required to be diligent when they that the final appraisal record must be maintained keep records. If you have any questions regarding permanently. record retention, feel free to reach out to your school attorney.

The record of an employee grievance must be

2+ YEARS •

•

•

•

•

kept from the date of the final decision on the grievance, plus two years.

Any questions concerning these materials can be addressed to jpowell@edlaw.com or ejd@edlaw.com.

• Responsive Counselors • Experienced Litigators • Tireless Advocates • Captivating Trainers

www.edlaw.com | (800) 488-9045 | information@edlaw.com

32 | HR Connection

Return to Full-time In-Person

Max Trinidad Associate Attorney

A

s the school year parallel to the pandemic ends, we start to see the light at the end of the tunnel. So now what? You may have decided that it’s time to bring back all students, teachers, and personnel next year, but, you may also be wondering how to do it.

How do you do this safely? How do you do this legally? Masks?

Testing? Vaccines? Telework?

All of these questions present real concerns and, frankly, don’t have clear answers. However, like much of the pandemic, we have to make do with what we have. While our body of pandemic knowledge is ever-evolving, Texas and the federal government have provided us with some guidance in this area.

When looking to bring back members of your community to campus full-time, you’ll want

to consider, among other things, TEA Public Health Guidance and CDC guidance, the state of your district’s mask mandates, vaccine requirements, and ADA reasonable accommodations. While this list is certainly not exhaustive, it’s a good starting point in determining which factors need addressing before returning to full-time, inperson learning. If there’s one thing we’ve learned in the school law realm during the pandemic, it’s that guidance can change in an instant; so, at a bare minimum, it’s always good to keep up with TEA guidance, the governor’s orders, and CDC guidance – and, of course, to seek counsel from your school lawyer, when needed.

That being said, this article uses the guidance current at the time of writing.

TEA PUBLIC HEALTH GUIDANCE AND CDC GUIDANCE Your guiding light for public health

SY 20-21 Public Health Planning Guidance SY 20-21 Public Health Planning Guidance Operational Strategy for K-12 Schools through Phased Prevention 3 Executive Order No. GA-36 at 2 1 2

should be the Texas Education Agency and the Center for Disease Control and Prevention.

(TEA’s SY 20-21 Public Health Planning Guidance and the CDC’s Operational Strategy for K-12 Schools through Phased Prevention). Generally regarding school district personnel, TEA’s guidance addresses administrative activities by teachers and staff,1 and the CDC’s guidance addresses prevention and operational strategies.2 Most districts and personnel administrators are likely already very familiar with this guidance, so we won’t go too in depth into it.

However, it is worth noting that the guidance from TEA is titled for the SY 20-21 and dated March 25, 2021. We’ve seen guidance change on multiple levels of government, and sometimes very rapidly, so you’ll want to be on the lookout for any changes. It’s possible (and likely) TEA will release new guidance for the 21-22 school year, and the CDC could update guidance for schools sometime before the new school year, as well.

If you need a real time update, seek counsel from your school lawyer on the most recent guidelines and practices.

MASK MANDATES AND OTHER BOARD ACTIONS On May 18, 2021, Governor Abbott signed Executive Order No. GA36, which effectively bans school districts from requiring any person to wear a face covering.3 The order allows public schools to continue their current policies on masks

33 | May 2021

that are compliant with the Texas Education Agency guidance until June 4, 2021.4 The TEA will then be required to revise its guidance to reflect the order’s ban on mask mandates.5 What this means for schools is that when returning to in person, full-time learning in the 2021-2022 school year, districts cannot require masks.

Additionally, while you’re addressing your mask mandates to comply with the governor’s order, you’ll want to think about your other Board resolutions, too. Many districts implemented resolutions during the pandemic which may be worth re-visiting.

You’ll want to go back and take a look at all of your COVID-related resolutions to ensure your district will be operating in the way you envision for the new school year.

VACCINE REQUIREMENTS Now on to the next hot topic – vaccine mandates.

According to the CDC, schools can add an extra layer of protection in schools with the vaccination of teachers and staff.7 So, let’s say your district wants to add this layer of protection by not only encouraging vaccines, but mandating them as a condition to returning to in-person learning. You may then find yourself asking whether you can do this. Well, the short answer is probably not…we’ll explain.

On April 5, 2021, Governor Greg Abbott signed Executive Order GA 35, which prevents state agencies and political subdivisions from adopting a policy that requires COVID-19 vaccination documentation as a condition of receiving any service or entering any place.7 This essentially prevents public school districts from requiring COVID-19 vaccination documentation from students or school personnel coming back to campus for in-person instruction. However, there is a piece of the order that you’ll want to keep an eye on for the upcoming school year – the order refers to documentation of a COVID-19 vaccine “administered under an emergency use authorization.”8 Pfizer and BioNTech, the manufacturers of one of the COVID-19 vaccines currently authorized for emergency use in the U.S., plan to file for full approval by the end of May.9 Since the current order

refers to vaccines administered under emergency use authorization,10 school districts may be allowed to require a fully FDA-authorized Pfizer/BioNTech COVID-19 vaccine in the 2021-2022 school year.

However, this would be contingent upon the governor not issuing a similar block for FDA-approved vaccine requirements, as well as no other changes in laws, guidance, and/or case development. Current federal law appears to permit employer mandated vaccines for entering the workplace, with restrictions,11 so if FDA-approved vaccine requirements are allowed by state law in the fall and Pfizer/BioNTech receive their full approval from the FDA by then, you could be allowed to require vaccines (in this case, the Pfizer/ BioNTech vaccine) for entry into the workplace. Of course, before doing so, contact your school lawyer for full up-to-date guidance on this.

REASONABLE ACCOMMODATIONS When requiring all personnel to return to in-person work next year, you’ll need to take into account reasonable accommodations under the Americans with Disabilities Act (ADA). One particular area to watch out for is job descriptions of personnel when determining reasonable accommodations for telework that was granted for COVID-19. Here is the EEOC’s take on the matter: To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request – after the workplace reopens – to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability . . . The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19 . . . does not mean that the employer permanently changed a job’s essential functions, that telework is always a

Executive Order No. GA-36 at 2 Executive Order No. GA-36 at 2 6 Operational Strategy for K-12 Schools through Phased Prevention 7 Executive Order GA 35 at 2 8 Executive Order GA 35 at 2 9 Pfizer Will File for Full FDA Approval by the End of May, Expects $26 Billion in Vaccine Revenue. https://www.forbes.com/sites/melissaholzberg/2021/05/04/pfizer-will-file-for-fullfda-approval-for-covid-19-vaccine-by-end-of-may/?sh=2bd53cb524c0 10 Executive Order GA 35 at 2 11 See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws 4 5

34 | HR Connection

than what you’re already doing), you will determine whether you will temporarily excuse performance of the in-person teaching essential function and whether it is feasible.

feasible accommodation, or that it does not pose an undue hardship.12 What this means for districts is that you’re going to need to re-evaluate if telework will continue to be a reasonable accommodation for the job. In doing so, if in-person instruction is going to be a requirement for the 2021-2022 school year, you should probably include in-person instruction on campus in the essential functions of the job descriptions. Then, on a case-by-case basis (maybe not completely different 12

*Note: This article is not legal advice. Consult with your attorney for guidance on your specific situation.

Max Trinidad is an attorney with the law firm of Walsh Gallegos Treviño Kyle & Robinson P.C., which represents public school districts throughout the state. He is an associate in the Houston office.

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

You’re invited to an exclusive roundtable of education leaders Thursday May 27th | 12PM—1PM CST

Valerie Minor Coordinator of Professional Development & Mentoring Services, Keller ISD

Expanding New Teacher Supports with Keller Independent School District and KickUp In a year where new teachers need more support than ever to effectively address learning loss, targeting the right instructional components is critical. On May 27th, find out how Keller ISD's New Teacher Induction program is using their existing resources for greater impact. RSVP today:

Robert Laws Senior Client Success Manager, KickUp

kickup.co/expandingsupports

BONUS FREEBIE!

Erica Feldman Partnerships Manager, KickUp

Data Calibration for the Teacher Incentive Allotment kickup.co/tiaguide

Because you work at State of Texas Public Education

Switch & Save more than

900

$

over Verizon

with $10/mo discount on Magenta® MAX with premium UNLIMITED Talk, Text and Data!

Compared to 3 lines of Verizon Get More Unlimited over 20 mos. with approx. taxes and fees. Carriers features and fees may differ.

Req. new acct. on Magenta MAX. $5/mo./line discount up to 2 lines for 20 mos. Activate up to 4K UHD streaming on capable device, or video typically streams at 480p. Unlimited while on our network.

See how you save with T-Mobile!

T-Mobile Magenta® MAX

AT&T Unlimited Elite

Verizon Get More Unlimited

1 Line

$85 $80

$85

$90

2 Lines

$140 $130

$150

$160

3 Lines

$170 $160

$180

$195

Monthly prices with AutoPay with T-Mobile Work Perks discount

Monthly prices with AutoPay and paperless billing

Monthly prices with Auto Pay and paperless billing

And because you don’t want hidden fees, remember…

Taxes and fees are included.

Sales tax and regulatory fees included in monthly service price.

Verizon and AT&T add taxes and fees separately.

Carriers’ features differ.

Be sure to mention your employer to receive this offer.

855-570-9947 t-mobile.com/workperks t-mobile.com/store-locator

Natalya Kasha Validate your employment at My TMobile Need help? Contact me at Phone: 214-334-7293 natalya.kasha@t-mobile.com

Scan to visit us.

Limited time offer, subj.to change. T-Mobile Work Perks: Qualifying credit, new acct. with 12 or less lines, & port- from AT&T, Verizon, or Claro required. Enroll and validate eligible employment w/i 30 days of activ. reverification over 20 mos. may be required. Must be active & in good standing to receive bill credits. Allow 2 bill cycles. Credits may stop if you cancel any lines. May not be combined with some offers/discounts. Limit 1 T-Mobile Work Perks Corp node per acct. Magenta MAX: Credit approval, deposit, $10 SIM card, and, in stores & on customer service calls, $20 assisted or upgrade support charge may be req., U.S. roaming and on-network data allotments differ: includes 200MB roaming. Unlimited talk & text features for direct communications between 2 people; others (e.g., conference & chat lines, etc.) may cost extra. Unlimited high-speed data US only. In Canada/Mexico, up to 5GB high-speed data then unlimited at up to 256kbps. Not avail. for hotspots & some other data-first devices. Capable device required for some features. Activation required to deliver video streams at speeds that provide up to Ultra HD video capability (max 4K); some content providers may not stream their services in UHD. May affect speed of video downloads; does not apply to video uploads. AutoPay Pricing for lines 1-8. Without AutoPay, $5 more/line. May not be reflected on 1st bill.

Int’l Roaming: Usage may be taxed in some countries. Calls from Simple Global countries, including over Wi-Fi, are $.25/min. (no charge for Wi-Fi calls to US, Mexico and Canada). Standard speeds approx. 256 Kbps. Not for extended international use; you must reside in the U.S. and primary usage must occur on our network. Device must register on our network before international use. Service may be terminated or restricted for excessive roaming. Coverage not available in some areas. Network Management: Service may be slowed, suspended, terminated, or restricted for misuse, abnormal use, interference with our network or ability to provide quality service to other users, or significant roaming.

See T-Mobile.com/OpenInternet for details. See Terms and Conditions (including arbitration provision) at www.T-Mobile.com for additional information. T-Mobile, the T logo, Magenta & the magenta color are registered trademarks of N215053 Deutsche Telekom AG. © 2021 T-Mobile USA, Inc.