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Swine Flu (H1N1) Advisory

A number of questions have been raised regarding the actions school districts may take in response to the spread of swine flu. This updated advisory is intended to answer those questions.

Will schools be closed to contain swine flu?  Yes. The California Department of Public Health and the Centers for Disease Control and Prevention ("CDC") initially recommended that local public health officials order the dismissal of students from any public school if there was one confirmed or one strongly suspected case of swine flu. Some schools in California closed as a result of this guidance. Recently, the CDC has revised its guidance, and now advises that school closure is not recommended "unless there is a magnitude of faculty or student absenteeism that interferes with the school’s ability to function."

If a school is closed, how long will the closure last?  The California Department of Public Health and the CDC initially recommended that schools that are closed resume their normal operations only after there were no confirmed cases of swine flu among staff or students for fourteen days time. As noted above, CDC no longer recommends school closures in response to swine flu except if student and/or staff absenteeism interferes with the school’s ability to function.

What happens to the school district’s ADA funding if a school closes?  The Education Code contains a hold harmless provision specifying that in the event a school is closed due to an epidemic, or an emergency order by a federal, state, city or county official, the district is credited for the estimated ADA the school would have had if not for the epidemic or emergency order. Educ. Code Secs. 46390, 46392. The Code further specifies that a district that is unable to operate a full day school year due to an epidemic or an emergency order by a federal, state, county or city official, is to receive "the same apportionment from the State School Fund as it would have received" if it had operated for the full school year. Educ. Code Sec. 41422.

Will schools that are closed have to make up the days at the end of the year?  The Education Code excuses districts from complying with the full school year requirements in the event of an epidemic or an order by a federal, state, city or county official in response to an emergency situation. Educ. Code Sec. 41422. See also Educ. Code Sec. 37202 (excusing such schools from the "equal time" requirement).

Are districts obligated to pay the staff of schools that are closed?  Nothing in the Education Code excuses school districts from their contractual obligations to pay school staff in the event a school is closed due to an epidemic or an emergency order. The fact that the Education Code protects the funding streams for such schools would also make it difficult, if not impossible, for school districts to argue that they cannot comply with their contractual commitments due to the school closure. For these reasons, the past practice in California has been to pay school staff even when schools are shut down due to an emergency.

It is important to understand, however, that the legal basis for this obligation is the commitment the district made in the collective bargaining agreement, which the school district cannot modify without bargaining as EERA requires. You should therefore review your collective bargaining agreement closely to see if it contains any provision that addresses the obligation of the school district to pay staff in the event schools are shut down due to an epidemic. If you believe your agreement has language that excuses the district from paying staff in the event schools are shut due to an epidemic, and/or your district indicates that it will not pay school staff in the event schools are shut down, contact the CTA Legal Department immediately.

What can the association do to respond to the spread of swine flu?  Every school district is required by the Education Code to have a crisis response plan. See Educ. Code Sections 32280-32289. The California Department of Education is currently urging school districts to review their plans to make sure they include a plan for responding to a flu pandemic. You should review your school district’s plan as well and make sure it covers all of the basic elements of a flu pandemic plan.

For a list of those elements, see The Pandemic Flu Planning Checklist for K-12 School Districts, which can be found at www.pandemicflu.gov/plan/school/index.html and ww.ed.gov/admins/lead/safety/emergencyplan/ pandemic/planning-guide/index.html.

If the district does not yet have a plan, or the plan does not address critical issues for the association, you should demand to be included in the development of an adequate plan.

What are some issues associations should consider in determining if a school district plan is adequate?

  • Have local educational leaders met with health and emergency officials to review the district’s plans and to make sure it is consistent with the local plans?
  • Does the district have enough staff to meet the health and other needs of students such as nurses, counselors, and psychologists? If the district does not have sufficient employee resources, does the district have a plan to obtain additional help?
  • Does the plan provide for the liberal use of leave so that employees who are ill, and/or who have ill family members, may take leave with pay and without penalty? Does the plan specify how the liberal leave policy will work including the use of sick leave, sick leave banks, differential leave. The Education Code allows districts, in addition to the leave they already provide, to grant paid leave to staff due to an epidemic. See Educ. Code Sec. 44964.
  • Does the plan address how the district will deal with an unusual number of absences of both students and staff?
  • Does the plan establish procedures that will be followed in the event a school or district office is closed, such as procedures for paying employees if the staff who process the payroll are absent or the office that processes payroll is shut down?
  • Does the plan provide adequate procedures to have a safe and sanitary school environment by, for example, ensuring that schools have adequate sanitary supplies (such as alcohol based hand sanitizer) and providing for additional cleaning of school facilities to prevent the spread of the flu?
  • Does the plan address the status of school staff as "disaster service workers" and specify whether or not school staff is to be assigned any other activities if their schools are closed. Under California Gov. Code Sec. 3100 et. seq., all public employees are declared to be "disaster service workers" subject to such disaster services activities as may be assigned by their supervisors or by law.
  • Districts may want teachers to be prepared to provide learning opportunities for students, other than through the normal classroom environment. Districts may want to start working on an alternate method of delivery of curriculum in case of mandated school closures such as via cable, internet, telephone, television or radio. If so, the association should demand to bargain over these changes in working conditions.
  • Does the plan establish a communication system with employees to inform them of the status of the situation?
  • Has the school district made sure that all staff is aware of the plan and understands how it is to be implemented? 


What else can the association do to respond to the spread of swine flu?

  • Disseminate to members the key elements of the district’s plan.
  • Encourage members to check the status of their sick leave and inform them as to additional leave time that may be available to them.
  • Encourage members not to go to school if they are sick or if a family member is sick with a suspected case of the swine flu and to remain home for 7 days after becoming ill.  


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