Schools are quickly grappling with emergency plans and mandated closures due to the spread of COVID-19. The following is a summary of potential options to consider related to statutory pay and hour issues to address employee compensation during closures or subject to quarantine.

As of March 16, 2020, the Department of Public Instruction (DPI) has indicated it will waive the student instructional hour requirement for any school district that requests the DPI to do so due to this ongoing public health emergency. Schools will still need to request this waiver per state law, but the DPI will expedite this process. In addition, the DPI is asking the Governor to suspend a portion of the Administrative Code, in order to expedite the process. However, this guidance anticipates the possibility of additional school days being added and schools still opting to provide virtual learning during the closures. In addition, federal legislation is pending that would include, among other things, expanding the conditions through which leave would qualify under federal FMLA to include quarantine for an individual while caring for family members or if a school is closed with pay during the FMLA leave after 14 days. It would also require two weeks of paid sick leave for employees for those quarantined, self-isolating, sick or caring for or assisting family members who are sick, self-isolating or quarantined. We will keep you advised as conditions develop.

Schools must consider applicable laws related to payment of wages during periods of absences for various classifications of employees (exempt vs. non-exempt). In addition, consult employee handbooks, leave policies and contracts prior to making any final decisions about how to handle pay during full or partial closures.

General Rules For Exempt Versus Non-Exempt Employees

Generally, exempt employees need not be paid for any work week in which they perform no work at all. However, exempt employees must be paid their full salary for any work week that they work any part of the week. The general rule does not apply to certified teaching staff, as they are excluded from the salary basis rules, and to public entities, if certain conditions are met.

For all other exempt employees, this means a school is required to pay exempt employees their full salary if the school is closed for a half-day or any other period short of a full week, unless:

1. Absences are for one or more full days for personal reasons, other than sickness or disability. If, for example, an exempt employee is absent for one and a half days for personal reasons, the employer can deduct only for the one full-day absence.
2. Absences of one or more full days are occasioned by sickness or disability (including work-related accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability. Essentially, any employee with paid sick leave falls in this category. This applies to virtually all exempt school district employees. The employer is not required to pay any portion of the employee’s salary for full-day absences for which the employee receives compensation under the plan, policy or practice. Deductions for such full-day absences also may be made before the employee has qualified under the plan, policy or practice, and after the employee has exhausted the leave allowance.

Schools are not required to pay non-exempt employees for time not worked. Schools do not have to pay non-exempt employees when closed or when an employee is unable to come in due to weather, illness, etc., unless the non-exempt employee is otherwise working, such as working remotely, or using available paid leave. Any hours worked remotely must be paid. The FLSA sets no minimum amount of work for non-exempt (hourly) employees. Absent a contract with guaranteed hours, schools can reduce a non-exempt employees hours. However, an employee (exempt or non-exempt) whose hours are reduced may be eligible for unemployment benefits.

Options During a School Closure

Options regarding pay for employees during a school closure vary depending on: (1) whether the employee is classified as exempt versus non-exempt; (2) whether staff are considered exempt certified teaching staff; and, (3) whether the Public Accountability exception applies to certain public entities. Certified teaching staff are not subject to the salary basis test (the required minimum salary threshold to qualify as exempt) that other exempt employees must satisfy and, therefore, certified teaching staff can have full or partial day wage deductions for partial week absences or school closures of less than a full week. Similarly, public school districts may qualify for the Public Accountability exception to the salary basis rules, which is a special rule to allow pay deductions for partial day or full day absences in a week if certain conditions are met. Handbook, contracts, and policies should also be consulted prior to making any decisions and determining appropriate pay for individuals.

In general, the following options can be considered:

• Allow Use of Accrued Leaves. In an effort to ease the financial burdens of a school closure and help ensure employees remain available (and do not seek alternative employment) after a closure, schools may consider allowing a temporary suspension of policy requirements for the use of available sick leave or allow the use of other accrued leave banks, such as vacation, to ensure pay during the closure, at least to employees with leave banks.
• Advance Leave. Schools may also wish to allow employees to use the next year’s leave banks to help receive pay during extended closures.
• Continue Pay. Alternatively, depending on the anticipated length of the closure and budgetary considerations, schools may wish to continue paying employees during the period of closure. If so, schools should consider whether to require leave banks to be exhausted and whether to require subsequent work after the closure or repayment of wages not earned.
• Alternate Job Placement and/or Remote Work. A school may also consider whether it wants to offer employees the ability to perform remote or temporary work, other than work which the employee regularly performs, during a shutdown.
• Layoff/Reduced Hours. Rather than continuing employment with either use of leaves or continued pay, a school could layoff or reduce the hours of an employee. If the employee were laid off or reduced in hours, the employee may be entitled to apply for unemployment compensation.

There are pros and cons to each approach and careful consideration should be given to each option based on the employee groups’ classification (exempt versus non-exempt), policies, handbook provisions and contracts. In addition, we recommend consistent practices be followed about when and who is allowed to substitute paid leave banks or use the next year’s leave banks. Clear communication on expectations and implications of the closures should also be provided to employees. Schools are encouraged to consult with legal counsel to determine the specific requirements and implications for certain groups of employees, as well as appropriately precise communications. In addition, whether or not virtual instruction or alternative education services are offered during the emergency closing will have a meaningful impact on the economic and wage considerations.

We will keep you advised as new guidance, mandates and legislation emerge in the coming days and weeks. If you have any questions or would like assistance determining which options are best for your staff, please contact Claire E. Hartley at (262) 364-0260 or chartley@buelowvetter.com, Brett D. Schnepper at (262) 364-0262 or bschnepper@buelowvetter.com, Susan M. Love at (262) 364-0300 or slove@buelowvetter.com or your Buelow Vetter school law attorney.