Many stakeholders across the state have expressed gratitude for the extraordinary effort, creativity and resilience of school employees during the pandemic. Nevertheless, there may be a situation in which an employee is believed to have engaged in a form of misconduct that warrants the implementation of discipline, such as an allegation involving physical or sexual abuse of students or an inappropriate comment in the workplace, including during virtual instruction. This article will discuss how the pandemic has made the pursuit of discipline more challenging and how the landscape has changed when school districts must deal with issues involving misconduct. These include some new forms of misconduct, such as refusing to wear a mask.

Neither the disciplinary procedures set forth in Education Law section 3020-a (for tenured employees) nor Civil Service Law section 75 (for civil service employees) have been changed or suspended as a result of the pandemic, nor have any executive orders from the governor limited application of these laws. It is common for disciplinary procedures and rights of employees accused of misconduct to be covered in a school district’s collective bargaining agreements; these rules and procedures are also intact during the pandemic.

One challenge involves statutes of limitation (the period in which disciplinary charges must be brought to be considered timely). In the case of Education Law section 3020-a, the statute of limitations is three years unless the conduct constituted a crime at the time it occurred, while the statute of limitations under Civil Service Law section 75 is 18 months unless the conduct constituted a crime at the time it occurred. Even without a pandemic, these arerelatively short time periods, particularly when areas of incompetence are being considered.

When administrators believe an employee is incompetent, the sought-after penalty usually is dismissal. To meet legal standards, the district often must prove that there has been a pattern of poor performance on the part of an employee. Incompetency charges often will require demonstrating a history of the employer notifying the employee of performance concerns through, for example, letters of counseling or evaluations, providing some form of improvement plan, and proof that the employee has failed to improve despite such notice and opportunity to improve. This all takes time.

The pandemic also makes proving charges based on incompetence more difficult because the obvious defense would be to cite pandemic-related circumstances and claim they affected the employee’s ability to perform. Another challenge involves the suspension of ratings under the state’s performance appraisal system for the 2019-20 school year. The absence of a consistent and uniform evaluation system in the current the school year will make discipline of any tenured teachers or tenured building principals more challenging.

One tool that is unaffected during the pandemic is letters of counseling. These are non-disciplinary but formal communications that can be used to convey concerns that district administrators have regarding performance issues with any members of the staff. These may become the “record” in a future disciplinary action.

Misconduct could be actions or omissions related to the pandemic, such as an employee who:

• Comes to work knowing he/she is infected with COVID-19.
• Fails to engage in disinfecting between classes.
• Fails to follow a valid work directive due to some generalized fear of COVID-19.
• Fails to wear a mask.
• Fails to socially distance.
• Travel to a “banned” state.
•  Wears a mask or engages in other in-school behavior that contains political messaging in violation of district policy.

Once vaccines are available, an employee could be disciplined for refusing a legal mandate to be vaccinated.

One issue that many employers have encountered during the pandemic involves employees who have either failed to complete a screening questionnaire each day before they come to work or have provided false information. For example, an employee may state that they have not traveled to a state on New York’s travel advisory list in the last 14 days when, in fact, they have. (The advisory requires individuals who have traveled to New York from areas with significant community spread to quarantine for 14 days, unless they test negative in a prescribed series of tests, which can shorten their quarantine.) This can be the subject of disciplinary consideration, as it represents a failure to follow the directives contained in executive orders from the governor (as expanded upon by the State Education Department and Department of Health) concerning the reopening of schools. Employees also can be disciplined for failure to comply with the school district’s reopening plan.

Suppose an employee comes to work when they know or should have known that they are infected with COVID-19 or have been exposed as a direct contact to someone infected with COVID-19. Would that be subject to discipline? Yes. Not only would coming to work in such circumstances be a violation of the signed questionnaire that all school districts are required to have employees complete, but it also creates a health and welfare danger to students and staff. Also, as a practical consequence, it will result in a greater level of quarantine being ordered by the local Department of Health, resulting in many more students and staff members being directed to quarantine at home for up to 14 days.

Finally, consider the employee who refuses to come to work because they are afraid or uncomfortable doing so, citing anxiety over the coronavirus. Unless the individual has a documented credible medical issue that would result in their being entitled to reasonable accommodation, this could be subject to discipline. However, much depends on the circumstances. Under certain Occupational Safety and Health Administration (OSHA) regulations, an employee may have a right to refuse, in good faith, dangerous work. In New York, the Public Employee Safety and Health Bureau (PESH), created in 1980, enforces safety and health standards promulgated under OSHA and several state standards. According to OSHA and PESH, employees with safety concerns must first notify the employer of the danger. The situation must be a real threat of death or serious injury, and the employer must have failed to appropriately address the matter before the employee can refuse work under the protection of state and federal law. This is not an easy thing for an employee to prove.

Similarly, an employee might have a right to refuse dangerous work under a collective bargaining agreement. Typically, courts and the Public Employment Relations Board have ruled that an employee who is faced with a directive from a supervisor that he or she does not wish to honor for some reason must “obey first, grieve later.” However, an exception exists if the directive is deemed unsafe or illegal. As with OSHA and PESH, this puts a high burden of proof on the employee.

COVID-19 could provide a rationale for a school employee to refuse to work based on a safety concern, if they follow the requirements set forth in law and/or collective bargaining agreements. Such situations must be carefully analyzed based on the circumstances. Is there a specifically articulated threat to the individual employee in the individual situation being considered? Generalized concerns about the coronavirus probably would not be enough to protect an employee from discipline for failure to perform one’s job or follow a directive.

Finally, discipline always involves a consideration of factors including the length of employment of the particular employee, what prior record, if any, the employee has concerning discipline or counseling in his or her personnel file, and the seriousness of the particular situation. School districts are advised to consult with their school counsel when disciplinary action is being considered. The pandemic makes discipline of employees more difficult. School districts should confront any acts of misconduct or incompetence as best they can during this unique time and never hesitate to seek advice from their school attorney.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Jeffrey Honeywell of the Honeywell Law Firm, PLLC.