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Employee discipline in the age of COVID-19
December 21, 2020
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.