Remote Learning Days (Labor Implications)
Labor and Employment FAQ
Schools must be aware that changes to working conditions and rules, hours, and wages are mandatory subjects of bargaining. Nothing in the ISBE statement released today changes or waives the law, which is superior, and nothing eliminates or mitigates the obligation to engage in local collective bargaining in order to implement any of changes which require the performance of work.
E1. ISBE emergency rules change the definition of days after March 30, 2020 to "Remote Learning Days." What are Remote Learning Days?
The answer at this time is that we are not completely sure how implementation will work, but there are new rules (released just minutes ago) defining the implementation requirements:
For any school or district that does not implement an e-learning program under Section 10-20.56 of the Code [which explicitly meets the remote instructional days requirement], the school or district must adopt a Remote Learning Day Plan approved by the school's or district's superintendent or chief administrator. Each school or district may utilize five Remote Learning Planning Days, consecutively or in separate increments, to develop, review, or amend its Remote Learning Day Plan.
Remote Learning Planning Days shall be deemed pupil attendance days for calculation of the length of a school term under Section 10-19 of the Code.
1) Each Remote Learning Day Plan shall address all of the following:
A) Accessibility of the remote instruction to all students enrolled in the school or district.
B) When applicable, a requirement that the Remote Learning Days activities reflect the State learning standards.
C) Means for students to confer with an educator, as necessary.
D) The unique needs of students in special populations, including, but not limited, students eligible for special education under Article 14 of the Code, students who are English learners, as defined by Section 14C-2 of the Code, students experiencing homelessness under the Education for Homeless Children Act [105 ILCS 45], or vulnerable student populations.
E) Transitions from remote learning to on-sight learning upon the State Superintendent's declaration that Remote Learning Days are no longer deemed necessary.
2) The school's or district's superintendent or chief administrator shall periodically review and amend its Remote Learning Day Plan, as needed, to ensure the Plan meets the needs of all students.
3) Each Remote Learning Day Plan shall be posted on the school's or district's Internet website where other policies, rules, and standards of conduct are posted and shall be provided to students and faculty.
4) Work connected to Remote Learning Day Plans shall be mutually agreed upon between employers and any collective bargaining entity.
23 Ill. Adm. Code 5.10, emphasis added. While long-standing guidance from ISBE defined Act of God days to be days during which no instruction is required and no penalty to funding results, Remote Instructional Days days have a distinct definition under the Emergency Rules. As such, we are as-yet unclear about how reimbursement and compensation will be affected.
E2. What does ISBE's guidance say about how Remote Learning Days will be compensated to schools?
According to ISBE's statement, schools will receive no loss of funding for those days which are now called Remote Learning Days occurring between March 30, 2020 and April 7, 2020. However, subject to agreement in collective bargaining, schools should take steps to ensure compliance with the emergency rules requiring Remote Learning Days and Remote Learning Planning Days. It is unclear at this time what penalty or if any penalty will result to funding if schools are unable to assure compliance with the Remote Learning Days and Remote Learning Planning Days requirements of the Code.
E3. What are the work requirements of the Remote Learning Days?
Work connected to Remote Learning Day Plans shall be mutually agreed upon between employers and any collective bargaining entity.
E4. How can a school district compel work from employees during Remote Learning Days?
First, schools should be mindful not to encourage congregation pursuant to the Governor's Executive Orders 2020-05 and 2020-10, and observe the guidance of further Executive Orders, if any, the CDC, and the Department of Public Health. Second, schools must collectively bargain changes to work rules, working conditions, hours, and wages. Nothing in the joint statement, the new rules, or any Executive Order issued thus far eliminates or mitigates the requirement to bargain, and nothing in the statement or rules establishes that assigning remote instructional day duties is inherently a management right. In fact, the emergency rules explicitly require bargaining over the changes.
E5. Can a school district compel employees without internet at home to come to school to conduct remote instruction?
Schools must be mindful of the requirements set forth in Executive Order 2020-10 prohibiting congregation and encouraging social distancing. While schools are defined as an essential service permitting some continued operation, schools are still encouraged to observe the general rules applicable to the general public in provision of regular services. Nothing in the Executive Order prohibits a school from compelling employees to come to school to perform mandatory duties, but both the mandate of duties and the conditions of their performance (whether at school or away from school) are a mandatory subject of bargaining. Schools should be careful to develop clear agreements with their unions permitting the mandate and rules for work.
E6. Are there other pay issues to which schools should be alert?
In addition to mandating work, schools should be careful to establish well-written agreements for when people will work, what the expectations are for that work, and how much employees will be paid. Although ISBE's joint statement was a broad pronouncement as to reimbursement, schools should be careful about any additional broad pronouncement as to pay, particularly for days beyond April 7, 2020, for which the answers are not yet clear as to what kind of funding will be provided. Broad pronouncements before agreement as to work and performance rules may undermine a school's ability to secure compliance with obligations, and may also motivate "double pay" bargaining proposals for employees who voluntarily provide services when others refuse.
E7. Were evaluation timelines modified by any guidance, rules, or statements?
The joint statement pointed out that school districts that have completed all observation and data collection points may complete evaluation without violating the rules, so long as the local collective bargaining agreement and evaluation plan lack any contrary and unwaivable provision. Schools that have not completed such requirements will see evaluation results "defaulting" either to proficient for most teachers, or to excellent for a teacher whose last evaluation summative rating was "excellent."
E8. Were reduction in force and nonrenewal timelines modified by any guidance, rules, or statements?
No. Remote Learning Days are intended by ISBE to be "regular school days" for purposes of calendar construction. Therefore, the approved end of school on the school's regular calendar is unchanged for purposes of the Remote Learning Days. The regular calendar day requirements for provision of notice requirement for conducting a reduction in force or nonrenewal continue to be applicable.
E9. What changes are applicable to teachers in professional development plans or remediation plans?
None at this time. The ISBE joint statement references the joint desires of the parties to fairly implement an appropriate amount of time to demonstrate performance expectations compliance which permits evaluation and observation of employees on such plans. The joint statement suggests that employees who are early in their plans "should" be able to restart their plans and thus the days for performance. But the statement does not supersede or replace the law, and the law contains fixed and certain dates for implementation, development, and performance pursuant to a remediation plan, and fixed dates for development and implementation of a professional development plan. Schools should not rely on the guidance at this time to presume waiver of the law's requirements, and should continue to conscientiously and carefully construct and implement plans with an eye toward fundamental fairness to the affected employee and cooperation with the local collective bargaining agent.
E10. Must Act of God days be made up at the end of the year?
According to ISBE, "given the language of the recent Executive Order, ISBE continues to count the Act of God days that schools utilized during the period of March 17 through March 30th as attendance days that count towards the 176 days of actual pupil attendance, as required by Executive Order 2020-15 and 105 ILCS 5/10-19. Act of God days do not need to be made up at the end of the school year."