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Legal Insight

Paraeducator and Other Education Support Professional Rights: In-Person Instruction and Other Student Supports

This guidance provides information about safety practices as well as your rights to accommodation and leave under federal law.
A teacher speaks to students, including a young girl in a wheelchair
Published: 11/17/2020

This fact sheet summarizes your rights under federal law. Always check with your local and state associations for assistance in enforcing these rights and about additional rights you may have under state laws, collective bargaining agreements or memorandums of understanding with the employer, or policies.

Many school districts are resuming some form of in-person instruction, in particular in-person instruction for students with disabilities. Paraeducators and other education support professionals (ESPs), such as those who work in transportation and health and student services, often provide hands-on assistance to students with disabilities. This hands-on assistance makes it difficult to maintain the social distancing that is recommended to prevent the spread of COVID-19. This guidance provides information about safety practices as well as your rights to accommodation and leave under federal law.

Safely Reopening Schools

The Centers for Disease Control and Prevention (CDC) has put out guidance about safely reopening K-12 schools for in-person instruction. According to the CDC, reopening generally (including in schools), should occur only if a community is improving in six areas:

  • the number of newly diagnosed COVID-19 cases,
  • the number of hospital visits with “COVID-like illness,”
  • the number of hospital visits with “influenza-like illness,”
  • the percentage of positive COVID-19 tests,
  • the capacity of hospitals to treat patients without crisis care, and
  • the robustness of diagnostic testing programs. 

The CDC also has released indicators to assist in the decision of whether or not to reopen schools. These indicators include the number of new cases and positive tests during the last 14 days as well as the measure of school implementation of key mitigation strategies. The key mitigation strategies include:

  • consistent and correct use of masks,
  • social distancing to the largest extent possible,
  • hand hygiene and respiratory etiquette,
  • cleaning and disinfection, and
  • contact tracing in collaboration with local health departments. 

Once community transmission is contained and these indicators are met, schools can reopen in-person instruction. However, in order to prevent an increase in COVID-19 cases, it is crucial for reopened schools to abide by “the four D’s” — distancing, deterrence, disinfection, and detection.

  • Distancing – maintaining six feet between people (may require utilizing hybrid schedules)
  • Deterrence – masks, improved ventilation, eliminating use of shared supplies, frequent hand washing, hand sanitizing, and staying home if feeling sick
  • Disinfection – proper cleaning and disinfection of schools, buses, and equipment
  • Detection – health screenings, isolating sick students/staff until they can go home, closing to contain outbreaks

Where school districts and institutions of higher education have reopened in-person instruction without meeting these criteria, they are putting student and staff health at risk.  And, even where all protective measures are in place, they may not fully apply to paraeducators or other ESPs who may not be able to maintain the recommended distancing while working with students with disabilities who require hands-on assistance.

Safety Guidelines for Paraeducators and Other ESPs who may have “Close and Consistent Contact with Students with Disabilities”

The CDC has issued safety guidance for paraeducators and other staff who may have “close and consistent contact with students with disabilities” and are unable to maintain six feet of distance between themselves and the students they work with. In addition to paraeducators, this could include other ESPs such as personal care assistants, bus aides, health aides and others who work closely with students on a regular basis. According to the CDC, these staff are in the same risk category as health care workers and should therefore receive extra safety measures in addition to those listed above. The additional safety measures include:

  • Using physical barriers (e.g., plexiglass or similar materials, other impermeable dividers or partitions) to separate staff and students from each other in classrooms or other shared spaces.
  • Reducing exposure amount by reducing daily caseloads, where feasible.
  • Relocating workspaces to the best ventilated spaces in the building.
  • Wearing a mask as much as possible during service delivery.
  • In circumstances where the student has difficulty wearing a mask or needs to see the staff person’s face/mouth, consider adaptations and alternatives to masks for students and staff, such as clear masks or wearing masks in close contact situations, to increase the feasibility of wearing masks when possible.
  • Personal Protective Equipment (PPE) for certain interactions with students that present the risk of the paraeducator/other ESP being splashed or sprayed with bodily fluids (facemask, eye protection, disposable gloves, and a gown).
    • Gloves should be worn when touching students and be disposed of safely after use. Hands should be washed before and after taking off disposable gloves. If gloves are not available, hands should immediately be washed after touching students or their belongings. 

Legal Protections for Paraeducators and Other ESPs

Americans with Disabilities Act

If you have a medical condition that puts you at higher risk of experiencing significant complications from COVID-191, you may be entitled to accommodations under the Americans with Disabilities Act (ADA). The ADA is a federal law requiring that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities. Most of the health conditions that the CDC has identified as increasing the risk of COVID-19 likely qualify as disabilities under the ADA. There may also be additional medical conditions that your medical provider determines put you at higher risk.

Consult with your medical provider about any health conditions you have and what precautions are generally recommended by the CDC and specifically advised by your medical provider to reduce your risk of contracting COVID-19. Individuals with certain mental health impairments may also be entitled to accommodations under the ADA. Reach out to your local or state association for assistance in making an accommodation request. You can also seek an accommodation directly from your employer.

Requesting an Accommodation

You can request an accommodation through your human resources department. They may have an ADA request form you can use. If they do not have a form, you can also make a verbal request, but it is a good idea to follow up in writing. You do not have to provide medical documentation to support your initial request, but you may be asked for medical information confirming that you have a disability that requires accommodation, and in most cases, you will need to provide the requested information as long as that information is relevant to establishing your disability.2 It is often helpful to have your medical provider give you a “doctor’s note” describing your disability and suggesting accommodations.

Appropriate accommodations will vary depending on your job requirements and your medical condition. However, the CDC list of safety measures for paraeducators and other staff above is a good starting place for baseline safety measures. Other accommodations could include additional personal protective equipment (for example, more protective masks), physical barriers, changes to the work environment or schedules, temporary transfer to a different position, remote work, or temporary leave. You should consult with your medical provider about your specific situation. You should also consult with your local association about what accommodations options are available in plans to return to in-person instruction.

Denial of Accommodation Request

Your employer is required to consider your request and engage in an “interactive process” with you to try to find an appropriate accommodation. They do not have to provide an accommodation if doing so would be an “undue hardship” but if they deny your initial request, you can ask that they consider alternatives, and you can seek more information to support your needs. If your requested accommodation is denied, it is a good idea to ask why, to provide additional information, and propose possible alternative accommodations, if medically advisable.

You have the right to challenge the denial of an accommodation by filing a complaint asserting that the denial violates your ADA rights. It is illegal for an employer to retaliate against you for requesting an accommodation or for filing a complaint under the ADA. Complaints can be filed with the Equal Employment Opportunity Commission (EEOC) or your equivalent state agency. There are strict deadlines for filing complaints (usually either 180 or 300 days, depending on your state). You may also be able to challenge a denial of accommodations through the union grievance process. In any case, if your request is denied, you should notify your local association.

Age

Older age alone is not considered a disability, but many health conditions that may be more prevalent in older age individuals may qualify as disabilities. You should consult with your medical provider to see if you have any of these conditions.

Check with your local association about any accommodations for older workers that may be included in plans to return to in-person instruction or in separate agreements with your employer.

Pregnancy

Although pregnancy itself is not considered a disability under the ADA, many pregnancy-related conditions would likely qualify as disabilities, and accommodations could be sought just as with any other ADA-qualifying disability. At present, 29 states and 4 cities have laws specifically requiring employers to provide reasonable accommodations to pregnant people. Employers are also prohibited under the federal Pregnancy Discrimination Act from discriminating against employees on the basis of pregnancy, childbirth, or related medical conditions.

Obesity

Although the CDC lists obesity (defined as a BMI of 30+) as a risk factor for serious complications from COVID-19, obesity alone may not qualify as a disability. Conditions that may be related to obesity, such as hypertension and diabetes, should be included in any request for ADA accommodation.

Smoking

The CDC considers smoking to be a risk factor for COVID-19 however being a smoker is not considered a disability under the ADA. If you are a current or former smoker, you should identify any related medical conditions, particularly those that may affect the heart or lungs.

Living with a High-Risk Individual

Unfortunately, the ADA does not require employers to provide accommodations to protect family members of employees who do not themselves have a physical or mental impairment. Check with your local and state association about options for educators who live with high-risk family members, as this may be a part of plans to return to in-person instruction or agreements between affiliates and employers.

If there are no other provisions to accommodate you, you may be able to take leave under the Family and Medical Leave Act (FMLA) or a similar state law providing for family leave. FMLA leave can be taken to care for an immediate family member (spouse, parent, or child) with a serious health condition. Under the FMLA regulations, a “serious health condition” can include a chronic condition that requires periodic visits for treatment by a healthcare provider, continues over an extended period of time, and may cause episodic rather than continuing periods of incapacity. FMLA leave is unpaid, but it does provide rights to return to your job. In order to qualify for FMLA, you must have worked for the employer for 12 months and have worked 1,250 hours during the 12 months prior to taking the leave.

As a short-term option, if the person you live with has been advised by a medical provider to self-quarantine, you may be able to use Emergency Paid Sick Leave under the Families First Coronavirus Response Act (FFCRA), which provides up to 80 total hours of leave for specific COVID-related reasons. The emergency paid sick leave provided for under the FFCRA expires on December 31, 2020.

If the high-risk individual is your son or daughter, you may be able to take leave under the FFCRA’s emergency FMLA expansion, if your child’s regular care provider is not available due to COVID-related reasons. “Son or daughter” means your own child, including a biological, adopted, or foster child, a stepchild, a legal ward, or a child for whom you have day-to-day responsibilities to care for or financially support. It also includes an adult son or daughter who needs your care due to a mental or physical disability. All public employees (except federal employees) who have been on the employer’s payroll for at least 30 days prior to requesting leave are entitled to this expanded FMLA leave, even those who do not qualify for regular FMLA. The emergency expanded FMLA leave provided for under the FFCRA expires on December 31, 2020.

All leave under the FFCRA is available to all public school employees, including those who work part-time or are new employees.

Additional information regarding leave can be found here: https://educatingthroughcrisis.org/your-rights/educator-rights-to-leave-under-federal-law/

For more information please visit: https://educatingthroughcrisis.org/your-rights/

Always check with your local and state associations about additional rights you may have under state laws, collective bargaining agreements or memorandums of understanding with the employer, or policies.  If you believe your rights have been violated or you need assistance filing a legal complaint, you should contact an attorney for legal advice.


1 The CDC has stated that those aged 85 years or older are at the greatest risk for severe illness or death from COVID-19, and that at ages 40-60, risk increases with age. The CDC also states that those with cancer, chronic kidney disease, chronic obstructive pulmonary disease (COPD), sickle cell disease, type 2 diabetes mellitus, and serious heart conditions or who are obese or are in an immunocompromised state due to a solid organ transplant, are at increased risk of severe illness from COVID-19. Individuals with moderate-to-severe asthma, cerebrovascular disease, cystic fibrosis, hypertension or high blood pressure, a weakened immune system for other reasons, neurological conditions such as dementia, live disease, pregnancy, pulmonary fibrosis, thalassemia, type 1 diabetes mellitus or who are smokers “might be at an increased risk.”

2 Your employer cannot ask you to turn over all of your medical records or ask for documentation beyond what is needed to establish your disability.

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