Response: Health and safety is our first priority – see the responses to the FAQ speaking to sick and family leave in the compensation section if reluctance to report stems from a diagnosis, heightened risk of susceptibility to COVID-19, or order from a public health official to quarantine, or arises from the need to act as a caregiver for a family member in one of those situations.
EO 104 states: “The Commissioner of the Department of Education (“DOE”), in consultation with the Commissioner of DOH, shall be authorized to permit schools to remain open on a limited basis for the provision of food or other essential, non-educational services, or for educational or child care services if needed in emergency situations after consultation with the Commissioner of DOH.” Employees should only be called to report to school buildings consistent with EO 104. It remains to be seen what in emergency situations the Commissioners of Education and Health will allow educational or child care services to be provided in schools.
The NJDOE has issued the following statement regarding essential employees: “When developing and updating its emergency preparedness plan, each district will need to consider their specific circumstances to determine which personnel would be considered essential and need to perform some duties during a closure. It is likely that certain staff would be needed in most districts, such as the chief school administrator, to oversee and coordinate operations; the school business administrator, to maintain business office operations; information technology staff, to assist staff using remote access and to implement any online instruction; staff involved in the preparation or delivery of food; and custodial and maintenance staff, to provide access to district facilities, and to clean and sanitize buildings as needed.” (emphasis added).
Other than the above statements in EO 104 and from the NJDOE, we have located no New Jersey school law mandates defining who are considered “essential employees” that the districts may require to report to work. The Commissioner of Education has stated that they are working on developing such a definition. The Commissioner has also stated that they will begin requiring the districts to submit to the NJDOE a list of employees they have deemed essential, along with a rationale for that designation. The NJDOE will review those submissions. In the meantime, if you believe non-essential staff is being asked to report to work, contact your UniServ field representative. The Commissioner has stated that instances of non-essential staff being called to report to work should be reported to county superintendents.
Despite the above, there is PERC precedent supporting the principle that when a state of emergency exists, employers may deploy their workforces in the manner they deem best to respond to that emergency. If there is a contractual obligation to work, the employer has the prerogative to require an employee to be present. Thus, if members are directed to report, they are susceptible to disciplinary action if they fail to report.
That being said, the association should advocate that as a matter of health and safety, only truly essential staff, such as the staff needed to carry out the purposes identified in EO 104 and staff identified in the NJDOE guidance, be required to report (for example, food service, IT, custodians performing essential work such as sanitizing). There is a possibility for an argument that if the assignment affects an imminent threat to health and safety, attendance might not be required, or it would be a negotiable topic, though this exact situation is untested. Practical considerations, such as public, political, and media pressure may therefore be more effective than legal arguments in this regard.