Educator Rights to Paid Sick Leave

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By: NEA’s Department of Collective Bargaining and Member Advocacy

Published: July 17, 2020 Last Updated: November 22, 2021

Educators face several different scenarios in which they may need to take leave related to COVID-19—whether they are ill, are asymptomatic but isolating because of a positive test, or are caretaking for others.

One of the primary mitigation measures schools should be employing is for people who are sick to stay home. The Centers for Disease Control and Prevention (CDC) recommends that people who have symptoms associated with COVID-19 stay home and schools “should allow flexible, non-punitive, and supportive paid sick leave policies and practices” that “support workers caring for a sick family member and encourage sick workers to stay home without fear of retaliation, loss of pay, loss of employment, or other negative impacts.” Schools should also “provide excused absences for students who are sick, avoid policies that incentivize coming to school sick, and support children who are learning at home if they are sick.”

For schools and campuses to maintain a safe environment for the entire community, it is vital that educators be able to take the time off from work as needed.

Federal funding to provide for additional paid sick leave for educators is available through the Elementary and Secondary School Emergency Relief Act (ESSER) funds, part of the Coronavirus Response and Relief Supplemental Appropriations (CARES) Act (2020) and the American Rescue Plan (ARP) (2021).

The following provides basic information about collective resources and individual rights that may help educators secure needed leave.

Collective Bargaining

In states where collective bargaining takes place, many affiliates have been at the table to address key health and safety issues related to the pandemic.

Whether renegotiating an expiring collective bargaining agreement (CBA), mutually agreeing to reopen a contract, or negotiating a separate memorandum of understanding (MOU), proposals around additional paid sick leave and other important COVID-related issues can be included in bargaining.

In addition to general increases in sick leave, affiliates have negotiated for:

Additional sick leave with restrictions for COVID-only related circumstances;
Establishing a sick leave bank (SLB) if one does not exist or ensuring that the guidelines for an existing SLB allow for utilization for any COVID-19 related circumstances;
Authorizing bargaining unit members to donate their own accrued sick leave directly to another member in need; and
Additional sick leave contingent on staff being fully vaccinated.

Make sure to consult with state/local affiliate staff as circumstances vary from state to state.

Labor-Management Collaboration

Labor-management collaboration can serve as an important mechanism to address issues concerning health and safety and advocate for additional paid sick leave.

Existing collective bargaining agreements may already contain provisions which establish a joint labor-management committee or even a committee specifically devoted to health and safety issues.

Although any sort of agreements should be codified in the contract or a separate MOU, addressing the many issues brought about by the pandemic in this type of committee can enable the parties to develop consensus on key details and save time later in negotiations. Many affiliates also engage in interest-based bargaining (IBB), a more collaborative approach to contract negotiations as compared to traditional bargaining.

Where limited or no bargaining takes place, affiliates can utilize or create a joint labor-management committee that can meet on a regular basis to discuss issues and identify potential solutions.

Advocate for Use of Federal Funding

American Rescue Plan and other federal funding, collectively referred to as Elementary and Secondary School Emergency Relief (ESSER) funds, can be used to provide:

paid leave for COVID-related illness separate from existing sick leave,
additional classroom coverage, and
to pay for qualified substitutes for educators.

Through collective bargaining or labor-management collaboration, affiliates can ensure that federal funds are used for essential mitigation measures recommended by the CDC, including making it possible for educators who are ill or advised to quarantine to stay home by providing appropriate paid leave.

Bargaining for the Common Good (BCG)

The threat of COVID-19 impacts everyone in the community – educators, students, administrators, parents, and others.

Paid sick leave for educators is not just an educator health and safety issue, it is an entire community issue as well. By ensuring that educators can utilize sick or quarantine leave to stay home, it can prevent the potential spread of COVID-19 in schools.

This, in turn, will reduce transmission to families and out into the broader community. When advocating for additional leave related to COVID-19, it is helpful to engage a Bargaining for the Common Good strategy.

State and Local Paid Leave Laws

Although there is not currently any federal paid family and medical leave program, as of October 2021, 36 jurisdictions across the country have or will soon have in place paid sick days laws.

A summary of these laws can be found on the National Partnership for Women and Families’ website.

Please be sure to consult with local and state affiliates about these laws, as their specific requirements and application may vary and may depend on what other benefits are included in any collective bargaining agreement.

Family and Medical Leave

The federal Family and Medical Leave Act (FMLA) provides for up to 12 weeks per year of job protected leave for workers who have a serious medical condition that prohibits them from working or who are caring for a family member with a serious medical condition.

Unfortunately, FMLA leave is unpaid, but it at least offers job protection and continuation of benefits to qualifying workers.

The basic requirements for entitlement to FMLA are 12 months of employment (that does not have to be consecutive) with the employer and working at least 1,250 hours during the 12 months immediately preceding the leave.

Many states also have FMLA laws, some of which provide additional protections, broader coverage, or longer periods of leave.

Americans with Disabilities Act (ADA) Accommodations

Educators with high-risk medical conditions should be aware of their rights under the ADA.

The ADA is a federal law requiring that employers provide reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless to do so would impose undue hardship on the employer. Many health conditions recognized by the CDC to increase the risk from COVID-19 would likely also qualify as a disability under the ADA, as would health conditions that may reduce the effectiveness of COVID-19 vaccines.

Examples of accommodations related to COVID-19 could include additional personal protective equipment (PPE), remote work from home, or temporary leave.

More Resources

Collective Bargaining: Educator Voice in the COVID-19 Environment

Learn about how collective bargaining plays a role in ensuring educators' safety during school reopenings.

Amplifying Educator Expertise Through Collective Bargaining and/or Collaboration to Address COVID-19 Issues

As states and communities consider how to resume in-person instruction, the voices and expertise of educators have never been more important.

The ESSER Funds: Bargaining and Advocacy Guidance for Safe and Equitable Schools

NEA guidance for how local affiliates can bargain and advocate for resources that not only support student learning, but also students’ social-emotional well-being.

American Rescue Plan Funding Checklist

Use our ARP checklist as a quick way to identify and share your funding priorities.

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Educator Rights to Accommodations

Learn how COVID-19 impacts your right to accommodations under the ADA.

Always check with your state/local association for assistance in enforcing your rights and about additional rights you may have under state laws, collective bargaining agreements or memoranda of understanding with the employer, or policies. Laws and potential legal remedies vary from state to state, and depend on individual facts and circumstances. For questions about individual legal claims, you should always consult with your local or state legal counsel or another attorney licensed to practice law in your state.

For additional bargaining or advocacy questions or resources including contract language, contact NEA’s Department of Collective Bargaining and Member Advocacy at [email protected].