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New York City teachers cannot request remote work as accommodation based on family members’ COVID-19 risk

By Tulay Turan, J.D.

The state’s accommodation policy was based on medical evidence, including guidelines from the Centers for Disease Control and Prevention, and the ADA, which does not require an accommodation for a relative’s disability.

The New York Department of Education’s COVID-19 accommodation policy had a rational basis and was not arbitrary or capricious, a New York state court found, dismissing a petition by five teachers seeking to work remotely through the end of 2020 or until a vaccine is approved. Although the policy only provided accommodations for a teacher’s underlying illness, not for teachers with an immunocompromised family member, the policy did not violate the ADA. The ADA only requires an employee to make a reasonable accommodation for an employee’s disability, not for an employee’s relative’s disability (Corwin v. City of New York, September 25, 2020, Edmead, C.).

Status of schools. In March 2020, due to the COVID-19 outbreak, New York officials closed school buildings across the city and directed remote learning for students, and Governor Andrew Cuomo placed the state “on PAUSE” to mitigate the spread of the virus. In April, school closures were extended through the remainder of the school year. In June, the governor lifted the “PAUSE” order and in July the city was given clearance to enter the final phase of the reopening plans, which included the reopening of schools.

The New York State Education Department (NYSED) and New York State Department of Health (NYSDOH) then issued guidelines for the reopening of schools and resumption of in-person instruction. In August, Governor Cuomo announced that schools across the state were permitted to open in the fall based on the lowered infection rate of COVID-19 in each New York region. After the announcement, the Department of Education (DOE) submitted to NYSED a reopening plan that set forth a “blended learning” model for instruction, whereby students would be taught on-site in school for part of the week and attend school remotely on other days of the week. DOE indicated that under this model, teachers and DOE staff would need to be present in schools each week.

Accommodation policy. On July 15, the DOE sent an email to its staff setting forth the policy that provided for the process to apply for a reasonable accommodation to work remotely. The policy provided that a reasonable accommodation would be considered under the ADA and in line with medical conditions set forth by the Centers for Disease Control and Prevention (CDC). It noted that a reasonable accommodation to work remotely due to COVID-19 would only be granted based on a teacher’s own underlying medical condition.

Teachers file petition. On September 4, 2020, five New York City teachers filed this petition challenging the accommodation policy as irrational, arbitrary and capricious. They alleged they would not be eligible for an accommodation even if they have serious health and safety concerns for themselves and their families. Simultaneous to the filing of the petition, they sought a temporary restraining order (TRO) and preliminary injunction pending hearing to restrain the respondents from removing them and those similarly situated from payroll or requiring them to use cumulative absence reserve (CAR) leave balance accruals for the 2020-21 school year to the extent they are available for remote work until at least December 31, 2020, or until a CDC-approved vaccine is made available. On September 14, the TRO was granted, but a few days later, respondents informed the court that the DOE decided to delay the resumption of in-person education, transitioning instead to a phased-in rollout. The court vacated the TRO and dismissed the petition as against the city as an improper party and as against one teacher who received the accommodation he requested. The remainder of the petition was ordered severed and transferred and was assigned to this court.

Policymaking authority. First, the court addressed whether challenges to the DOE’s policymaking authority are justiciable, finding that the DOE is vested with the duty to manage its school system, which includes the authority to make decisions concerning whether and how to reopen its schools after their closure due to COVID-19. Guided by state law cases involving justiciability issues, the court found the petition called for a remedy that would “embroil” the judiciary in the management and operation of the school system in New York City. The determination with respect to the viable accommodation options for teachers is within the DOE’s purview and should be left within its sound discretion. The court’s substantive consideration and evaluation of such matters would be an ultra vires act.

Rational basis for policy. Next, assuming arguendo the petition was justiciable, the court found dismissal was warranted because the accommodation policy had a rational basis and was not arbitrary or capricious. The DOE showed the policy was based on medical evidence, and the teachers did not present evidence, scientific or otherwise, to refute the various scientific authorities that were consulted in connection with the challenged policy. The DOE, throughout its reopening plans, referenced guidelines from the NYDOH and CDC as the basis for its health and safety plans. Noting that the CDC is the nation’s health protection agency and applies rigorous scientific standards to ensure the accuracy and reliability of its research results, the court declined to find that the incorporation of CDC guidelines into the policy was irrational, arbitrary or capricious.

The court also rejected the argument that the accommodation policy was arbitrary and capricious as it did not provide accommodations for the teachers even if they had an “immunocompromised” family member. The policy took guidance from the ADA. The EEOC, the agency responsible for enforcing the ADA, articulated that the statute does not provide accommodation to employees to “avoid exposing a family member who is at higher risk of severe illness from COVID-19.” Relevant case law is consistent with the EEOC’s pronouncement. The ADA only requires an employer to make a reasonable accommodation for an employee with a disability. An employer is not required to provide such accommodations to employees who have a relative with a disability.

No legal right to relief sought. The court also denied the teachers’ request for an order compelling the DOE to grant them an accommodation to teach remotely without loss of salary and having to use their CAR or sick days until at least December 31, 2020, or until a vaccine is made available. The teachers failed to establish a clear legal right to accommodation when they themselves conceded they are not eligible for remote work under the accommodation policy. In addition, they failed to cite any law, rule or regulation that would compel the DOE to provide them with a discretionary accommodation when the accommodation policy in place does not require one. Accordingly, the court dismissed the petition.