VDH attorney John Foskett worked with the National School Boards Association and the four state school boards located in the First Circuit and filed an amicus brief.  The plaintiffs claimed that Maine’s tuition assistance program violates the First Amendment’s bar on religious discrimination because, while it permits school districts that are unable to offer a full public education program to their residents to instead offer tuition assistance for attendance at private schools, it bars that assistance where the chosen school is sectarian. The amicus brief argued that there is no discrimination because the plaintiffs are not deprived of a benefit based on religion – they are being given the same opportunity to receive the benefit of a public education as is given to all others in the same districts without regard to religion. The First Circuit agreed and distinguished this case from two recent Supreme Court decisions (Trinity Lutheran and Espinoza) regarding what constitutes discrimination based on religion when the state makes a publicly-funded benefit available. Unlike those cases, the Court of Appeals held that the plaintiffs in this case sought to make a religious use of public funds and that the state could properly refuse to consent to that use.

Employers can expect several changes to come in 2021.  As detailed further below, there are many upcoming changes to federal and state laws that require employers be prepared.

Families First Coronavirus Response Act (“FFCRA”)

In 2020, the federal government passed the FFCRA, which encompassed two acts providing leave time to certain employees impacted by COVID-19: the “Emergency Family and Medical Leave Expansion Act” (“EFMLA”) and the “Emergency Paid Sick Leave Act” (“EPSLA”).  The FFCRA has required that all public employers, and all private employers with fewer than five hundred (500) employees, must provide leave consistent with the EFMLA and EPSLA.  The legislation passing the FFCRA called for the Act to expire on December 31, 2020, with no further EFMLA or EPSLA leave to be taken by employees beyond that date.

The recent pandemic relief package did not extend the FFCRA into 2021.  However, employers may voluntarily offer leave consistent with the FFCRA to employees.  Employers that choose to do so may utilize payroll tax credits to cover any voluntary FFCRA benefits provided through the end of March 2021.  At the time of this advisory, it appears that public employers are not entitled to payroll tax credits.  However, the Internal Revenue Service (“IRS”) has yet to issue definitive guidance on this issue.

Massachusetts Paid Family and Medical Leave Act (“PFMLA”)

Beginning on January 1^st, certain employees in Massachusetts will be able to access PFMLA leave for:

• Twelve (12) weeks of family leave to bond with a child newly born, adopted or placed in foster care;
• Twelve (12) weeks of family leave to manage family affairs while a family member is on active duty overseas;
• Twenty (20) weeks of medical leave to manage the employee’s own serious health condition; and
• Twenty-six (26) weeks of family leave to care for a family member who is a covered Service Member.

Beginning on July 1^st, employees will be able to access PFMLA leave for:

• Twelve (12) weeks of family leave to care for a family member with a serious health condition.

Public employees may only access PFMLA leave if the public employer has chosen to opt-in to providing PFMLA leave.

Eligible employees may access PFMLA benefits by submitting an application to the Massachusetts Department of Family and Medical Leave (“Department”).  Weekly benefits are determined and capped by the Department, but the actual benefit amount depends on an employee’s average weekly wage and the average weekly wage for workers in Massachusetts.  Employees can receive up to twenty-six (26) weeks of PFMLA leave in a benefit year.

PFMLA leave runs concurrently with the federal FMLA and the Massachusetts parental leave act.  An employee must choose between utilizing accrued paid leave or PFMLA benefits, however an employee is not required to exhaust accrued paid leave before using PFMLA benefits.  An employer must continue to provide employment-related health insurance benefits at the level and under the conditions that coverage would have been provided if the employee had been working, however the employee is responsible for paying the employee’s share of health insurance premiums.

Juneteenth Holiday

The Commonwealth of Massachusetts has designated Juneteenth as an official state holiday.  As a result, public offices must be closed on Juneteenth and employees may be entitled to holiday pay.  Employers should review their policies and collective bargaining agreements relative to holiday pay provisions.

If you have any questions about the content of this update, or labor and employment law generally, please contact us.

This update is provided for informational purposes only and is not considered legal or tax advice.

The Commonwealth Employment Relations Board (“CERB”) recently issued a decision holding that Andover Public Schools teachers participated in an illegal strike in violation of G.L. c. 150E, § 9A when they refused to enter school buildings on the first work day of the school calendar for 2020-2021 and insisted instead on performing their work outside the buildings on a remote basis.

In Andover Education Association, No. S.I.-20-8176 (Sept. 8, 2020), the district had designed, and then obtained approval from DESE for, a “hybrid” school reopening plan.  Teachers were directed to report to their designated buildings on the first day of the work year to engage in professional development – no different than any other year.  The variation in this year’s professional development work, however, was based on the Commissioner of DESE’s reduction of student learning time by 10 days, from 180 to 170, pursuant to emergency regulations and on his entry into an MOU with the MTA, AFT, and Boston Teachers Union that the 10 days would instead be devoted to reopening “preparation” work.  The district therefore scheduled activities for the first day that included tasks mandated by DESE’s COVID-19 reopening guidelines such as moving desks, testing Wi-Fi operation between classrooms and offices inside the buildings, and wayfinding around the buildings to learn new walking paths.

The union voted to have its members engage in what was labeled a “workplace safety action” in which teachers would allegedly work remotely outside of the buildings which they claimed had HVAC concerns.  As a result, many teachers did not accomplish their assigned duties for that day.  The School Committee filed a strike petition and the Department of Labor Relations’ strike investigation promptly ensued on September 3, 2020.  The CERB issued its decision on September 8, finding that those teachers who refused to enter their schools had engaged in an illegal strike and that the union and its officers also had violated the statute by condoning and encouraging a strike.

The CERB found first that the duties scheduled for the first day were required and were established by consistent practice even though the specific tasks may have been new for this school year.  It pointed out that the scheduled tasks inside buildings were an intrinsic part of the teachers’ duties given the unique circumstances of this school year arising from the pandemic.  The CERB noted that the union cited no authority permitting its members to “unilaterally dictate where they perform their work.”  It emphasized that a strike that violates § 9A is not limited to a full or partial refusal to perform duties but also covers a concerted refusal to report for duty.  The issue, therefore, was what constitutes reporting for duty under the law.

The CERB concluded that the phrase “report to duty” in G.L. c. 150E, § 1 “means reporting not only when but where the employer has ordered its employees to report.  In this case, that means inside the school buildings, including inside classrooms.”  The CERB expressly rejected the union’s argument that the law permits an employee to report to any location from which an employee can perform duties remotely.  Finally, the CERB ruled that despite labeling what happened as a “workplace safety action”, the union had presented insufficient evidence of circumstances giving rise to an “imminent risk of serious injury or death” such as might justify a refusal to enter the buildings.

The CERB therefore ordered the union and its officers to cease and desist; ordered the union’s officers to notify union members of their obligation to fully perform their duties; and ordered them to inform members of the contents of the order.

This decision addresses the “new normal” driven by the pandemic, in which remote work and learning are part of the fabric of public education in Massachusetts.  Under this ruling employees who attempt to unilaterally dictate when or where they will perform work, or what work will be performed, now risk being found to have violated Massachusetts law.

If you have any questions about the content of this update, or employment or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Today, August 14, 2020, the new Title IX regulations, enforced by the U.S. Department of Education (“DOE”), will go into effect. As discussed in our May 13, 2020 advisory on this topic, available here, the regulations have many new requirements for sexual harassment policies and procedures that need to be in effect by August 14, 2020.

Additionally, on August 3^rd the Massachusetts Association of School Committees (“MASC”) published a revised version of Policy ACAB to adapt to the new Title IX regulations. After review of the MASC model, however, we believe that several revisions are required. The following are most significant:

• The Policy should apply only to sexual harassment and not to harassment generally;
• The Policy must contain timeframes for stages of the investigation process; and
• The Policy must address Title IX complaints from employees.

We also advise that districts adopt the following components within the policy:

• A “preponderance of the evidence” standard;
• Limit appeals from determinations only to those that are required and that it not choose to allow appeals on other grounds, to avoid further entangling administrators in these procedures;
• Do not grant full, trial-like hearings as permitted by the regulations; and
• In addition to a Title IX Coordinator, the new regulations require a separate “decisionmaker” and a separate “investigator.” The policy ought to define who these people are and that generally the building Principal should be the “decisionmaker” and that the “investigator” should generally be the assistant Principal or other appropriate administrator.

School Committees will need to update their policies to conform to the new law which goes into effect on August 14^th and provide training to administrators involved in the management, investigation, and decisions regarding sexual harassment complaints. Our office is available to review and update policies and to provide the required training for administrators.

If you have questions regarding this update, the new Title IX regulations, or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

The Massachusetts Department of Elementary and Secondary Education (“DESE”) is permitting school districts to delay the start of the 2020-2021 school year by 10 days but not later than September 16, 2020, reducing the student school days to 170 days from the current 180 day requirement for the 2020-2021 school year.  Waivers may be available for school districts that are unable to meet the September 16^th start date.

School Committees are not required to reduce the number of student days in the 2020-2021 school year nor are they required to wait to begin classes until September 16^th.  School Committees should  consult their superintendents and leadership teams to assess the needs of educators for additional training to be able to effectively and fully implement the remote and hybrid plans being designed and be prepared to engage with their unions over the number of student days for the upcoming school year.

If you have questions regarding this update, bargaining obligations associated with the reopening of schools for the 2020-2021 school year,  or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.