HSTA taking legal action over HIDOE’s unsafe reopening plans

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Returning students to in-person learning, especially during a time when Hawaii has the fastest growing infection rate in the country with today’s one-day record of 355 cases, creates an unsafe working condition for members of Bargaining Unit 05.

The Hawaii State Teachers Association supports the recent Hawaii State Department of Education (HIDOE) announcement that schools will move to a distance learning model for the first four weeks of school to “align with the new safeguards and restrictions prompted by the increasing number of COVID-19 cases on the island.”

HSTA was also pleased when the department made similar modifications for most neighbor island schools, going to distance learning for the first month of school or more.

We believe these plans are still too risky for students and teachers. That’s because the HIDOE plans to continue to bring students physically to campuses next week through Sept 14.

“Let’s be clear. It is deceptive to say students will be 100-percent distancing learning for four weeks, because next week, students will be in classrooms with face-to-face learning. To have teachers be required to meet with students face-to-face in the middle of a raging pandemic is reckless, and will risk the lives of everyone,” said HSTA President Corey Rosenlee.

Dr. Scott Miscovich of Premier Medical Group says this risk is unacceptable. “There have been myths about, ‘Oh, children, well they don’t get that sick so it’s okay if they go back.’ Well, it’s one of the highest growing demographics of COVID spread in the state of Hawaii and in the United States of America,” he said. “A classroom is a perfect place for this disease to spread, and the disease is so contagious now, you don’t need 15 minutes face to face before you hit a serious contact. Most of our data shows that if you’re within 15 seconds of someone unexposed with a mask and you’re breathing, then you can get this virus.

“The other myth we need to put to rest right now is that children do not pose a risk to other people in their family; that they’re not shedding because they get mild symptoms. False,” Miscovich added. “Children pose the same risk of shedding this virus, and sometimes even they’re shedding it two days prior to other carriers, and their symptoms are often mild and very, very mildly detectable. What does that mean? It’s a risk to everyone at home.”

These dangerous plans for in-person learning, along with other violations of our agreement, prompted HSTA to pursue legal action on two fronts. The HSTA will file a prohibited practice complaint with the Hawaii Labor Relations Board (HLRB) against the state of Hawaii. The HSTA requested impact bargaining with the HIDOE over the changing community conditions (with COVID-19 spreading) and the newly modified instructional plans. The state has refused HSTA’s demand to bargain over the change in working conditions, especially in light of the exponential growth in the spread of COVID-19 and infection at more than nine schools since the beginning of this month and/or failing to bargain in good faith. The HIDOE inappropriately claims that there is no significant change in working conditions, buildings are open, schools are safe and students can return and teachers will need to report to their worksites next week.

HSTA is also requesting that the HLRB issue a declaratory ruling that the state’s planned action violates the relevant state workplace safety rules by forcing teachers into a hazardous workplace, and an injunction to prevent the state from violating these rules.

HSTA will also file a class grievance on behalf of Bargaining Unit 05 employees because of violations to the HSTA collective bargaining agreement (contract) and memorandum of understanding (MOU) reached with the state of Hawaii in June.

The state committed to language in our MOU that “in-person school will resume in conjunction with written guidance from the State of Hawaii Department of Health (DOH).” In particular, the HSTA has requested written guidance on triggers and standards which the DOH has determined when schools are safe to open for in-person learning, when they should close and/or should reopen after a closure. Despite repeated requests, the DOH has not provided written guidance on this crucial issue. In another troubling development, the DOH has been unable to properly support the contract tracing process for campuses with positive COVID-19 cases in a timely and effective manner.

Eric Seitz, an attorney for special education students, said Thursday that he notified the state attorney general’s office of his intention to file a lawsuit against the state of Hawaii to stop students from going to school on Monday. 

“Sending them to unsafe schools, even for four days, classrooms in which we’ve heard there will be more than 10 people because there may be seven or eight students, but those students have aides and assistants that will mean as many as 15 to 18 people in a small, confined area, that violates every guideline from every agency, national and state and local, and it puts people at risk,” Seitz said. “I cannot conceive of any circumstance now or any rational policy maker or decision maker would want to put children, teachers, staff members in the schools in an unsafe situation, and it is beyond debate that what’s being proposed for next week is unsafe.”

Unfortunately, despite all of our efforts to date, the state seems determined to return students to buildings next week. While some schools are staggering small groups of students on campuses, others plan to bring hundreds of students back for four days starting Monday. We also know there are still reports of teachers not feeling prepared for the return of students including a lack of support for proper cleaning, access to personal protective equipment PPE, and/or written procedures for proper health screening of students.

What can I do in the meantime?

Unfortunately, a class grievance and prohibited practice complaint take time and do not have the power to stop the employer from moving forward with having students report to school next week.

We know that members may feel they are being placed in an unsafe position next week. Because of the above, the HSTA has the following guidance for members.

If you believe your worksite remains unsafe or hazardous conditions exist, you should notify your administrator and request they take action to address them.

We suggest that you put your notice and request in writing and notify your school HSTA grievance representative and/or your HSTA UniServ Director. The principal has to respond and to take appropriate action within a reasonable time.

Parents, teachers, and community members should also reach out to their principals and complex area superintendents who have been given wide latitude to deal with health and safety on their campuses, including utilizing “grab-and-go” systems for distance learning materials.

In addition, HSTA has received multiple reports from members that they are considering the need to take leave to avoid jeopardizing their own health and safety. If you are a teacher with similar concerns, we would like to remind members that they have the right to take leave as appropriate.

Leave options

Teachers* have a variety of options for leave depending on the duration and reason for the leave. Whether a teacher is paid or not is directly related to a teacher’s paid sick leave or vacation (12-month teachers only) leave bank. The following options for leave may be utilized.

Personal leave may be taken for up to six (6) days per year. Teachers should be familiar with the rules about how this leave can be used, and it is taken from your sick leave bank for paid status. The leave is outlined on page 32 of your contract.

Sick leave may be taken if a teacher is ill. You may take up to five (5) days sick leave prior to having to provide a sick leave note. After the fifth consecutive day, you will need to provide a note indicating you are under doctor’s care. Being paid on this type of leave is completely dependent upon the status of any sick leave bank a teacher may have. Each 10-month teacher is provided eighteen (18) days each year upon reporting to the first day of work for the school year. Twelve-month teachers receive 21 days of sick leave. In addition, teachers may take sick leave without pay for longer durations even beyond one-year.

• Members can click here for additional member benefits resources that explain more about how personal and sick leaves work. Please note, this information is available on HSTA's members-only section of our website. You must be an active HSTA member and logged in with your registered account to view it.

Vacation leave may be taken by 12-month teachers who are provided 14 days of vacation leave a year, however there are rules specific to requesting and receiving approval for such leave.

Family leave may be taken for a variety of reasons depending on the nature of the request. For more information, see the information on FFCRA leave and/or regular FMLA leave below. Some family leave may be on a paid status depending on the circumstances.

Unpaid leave may be granted for other reasons including the following: child care, military leave, government service, professional improvement, religious holidays, and “other reasons the department considers reasonable.” All of these leaves have a variety of requirements for approval and vary in their duration.

Medical/health plans will continue while you are on a leave status regardless of paid or unpaid, but if you are on an unpaid leave, you are still responsible for your share of the health care premium.

Tenured teachers can take up to one year off with return rights to a position on their campus for which they are qualified. They can, in some cases, renew that leave for an additional year with rights back to their district.

*Non-tenured teachers have fewer rights related to taking long-term leave and/or return rights to a position. Generally, any rights are able to be utilized only within the current duration (one year) of your tentative teaching agreement (contract).

Wear black on Monday, Aug. 17

On Monday, Aug. 17, we ask every teacher to wear black. Black is the color many people wear to funerals, and that is exactly what will happen if students and teachers meet in-person on campuses Monday and beyond.

HSTA will also ask the Hawaii State Board of Education to take action at its Aug. 20 meeting to ensure 100-percent distance learning for all students on all islands until at least the end of the first quarter, and to assure that teachers have the option of teleworking.

Finally, the teachers of Hawaii are asking Gov. David Ige to take emergency action before Monday to protect Hawaii’s keiki by stopping any face-to-face instruction or meetings in schools. Governor, you hold the safety of our children and educators in your hands, and you have the power to stop these hazardous plans before we have to bury a teacher or student.