Paul L. Caron

Saturday, June 20, 2020

Penn State Faculty Demand Right To Decide Whether To Teach In Person Or Online, Guarantee Of Jobs, Full Salary, Benefits, Raises, And Hiring Of New Faculty

Pittsburgh Post-Gazette, Penn State Faculty Want Final Decision on Where, How to Conduct Classes in the Fall:

Penn State UniversitySurveys show that tuition-paying college students want face-to-face instruction this fall, pandemic or not. Campuses in Pennsylvania are intent on obliging to the extent they can.

But if faculty fear health risks, should they have the final say on whether to teach remotely?

That question has surfaced at Penn State University, which announced its reopening plans Sunday even as a letter signed by more than 1,100 faculty, graduate assistants and others called on the state's flagship university to offer greater safety assurances and more transparency about the evidence on which the decision was based. ...

Penn State officials, in rolling out their plan, said the university will maintain a workplace that meets health standards. Like other schools, the instruction will be a mix of face-to-face and remotely delivered instruction, depending on circumstances.

Open Letter to the Penn State Administration Regarding Plans for the Fall and the Response to COVID-19:

[I]n the event that students return to campus for the fall semester, we ask the university to commit to the following, and to formalize all policies in writing:

The university will affirm the autonomy of instructors in deciding whether to teach classes, attend meetings, and hold office hours remotely, in-person, or in some hybrid mode. Staff should also have the option of working remotely. Instructors will be able to alter the mode of course delivery at any time if they deem it necessary for their own safety or the safety of their students; no one will be obligated to disclose personal health information as a justification for such decisions, and they will not face negative repercussions from the university or supervisors. ...

To fulfill the educational mission of our university, all faculty members, staff, graduate employees, and other essential employees must have secure employment, equity, and a guarantee of the resources necessary to perform their work. Given Penn State’s significant liquid assets, we ask the university to commit to the following:

  • The university will extend fixed-term faculty contracts through the 2020-2021 year at a salary equal to or exceeding the faculty member’s 2019-2020 contract, and it will maintain full employment, pay, raises, and benefits for all faculty and staff (including administrative, custodial, and maintenance staff). If classes fail to meet the minimum enrollment, the university will either allow these smaller classes to run, or it will assign faculty other important tasks such as curriculum design and program-building. ...
  • The university will continue to undertake tenure-track hiring initiatives and other efforts to ensure the strength and diversity of its workforce while simultaneously facilitating the advancement of all current faculty, particularly those from underrepresented groups. It will continue to offer assistant professors choice in whether to request a delay in their tenure review due to the pandemic and its fallout, for as long as such accommodations are needed. It will also recognize that delays in the promotion of both assistant and associate professors may undermine efforts to redress disparities of gender and race and will consider ways to address this issue.
  • The university will commit to drawing on its many financial resources to ensure the maintenance of programs and positions across all of our campuses.

Coronavirus, Legal Ed News, Legal Education | Permalink


In addition to simply writing letters - which may or may not have any significant impact or effect - campus organizations and individual faculty members should consider filing complaints - now, before it's too late - to more effectively spur action. Below is what I wrote some time ago. For a more recent analysis, see also:

CHRONICLE OF HIGHER EDUCATION - Can Faculty Be Forced Back on Campus? Several Covid-related regulations and federal and state laws provide guidance

Fortunately, faculty members who do not want to take the risks of infection with a deadly and very contagious virus by teaching several times a day (or even only several times a week) in a classroom, with students who may not see themselves at serious risk (because of their age) and/or may not always act responsibly (again, because of age) - e.g., how many frolicked and partied together over the recent spring break and at newly reopened beaches - do have some remedies.

Aside from forcefully voicing their concerns - if not unwillingness - about returning to classroom instructions too soon, and/or working with a faculty senate or other representative bodies to complain, a number of recent articles suggest various legal and law-related courses of action for faculty concerned about this risk to themselves, or perhaps also to children and elderly relatives residing in the same dwelling.

Moreover, it would be well to be sure that administrators understand the availability of these various remedies, and of the willingness of some professors - especially those at especially high risk - to take advantage of them in the fall, before the college or university makes a firm decision about forcing professors to return to the classroom this fall.

USA TODAY - Can Your Boss Make You Come to Work During Coronavirus Outbreak? notes that "the Occupational Safety and Health Administration [OSHA] has a 'General Duty Clause' [Section 5(a)(1)] that requires workplaces to offer environments that are 'free from recognized hazards that are causing or likely to cause death or serious harm to employees.' 'COVID-19 counts as something that is likely to cause serious injury or death,' Reice said."

This "general duty clause" permits any employee to file a formal legal complaint regarding workplace hazards, anonymously if desired, even if no specific OSHA rule or regulation has been violated, and the statute then prohibits any form of subsequent retaliation by employers for the filing of such complaints; a legal protection apparently most useful to faculty without tenure.
See, e.g., Employers Cannot Retaliate Against Workers Who Report Unsafe Conditions During Coronavirus Pandemic, Officials Say

For example, when I headed our nation's antismoking organization, we were able to use general duty complaints, and even the threats of such complaints, to prompt companies to protect employees from the risks posed by secondhand tobacco smoke, even though there were no rules - nor even official guidance - regarding these risks.

Indeed, the mere threat of one such complaint was enough to get my own university, George Washington, to ban smoking in professorial offices where many insisted they had a right to smoke.

Also, as reported by InsideHigherEd - Giving In At George Washington University U. *** After Professor Threatens to Sue Official, University Says It Will Take Stronger Steps to Deter Smoking Outside Buildings [], the threat of a similar complaint prompted GWU to finally become a smokefree campus, outdoors as well as indoors.

I was even able to use the threat of a general-duty-clause complaint to force another university to protect an employee from the lesser-known and lesser-accepted risk posed by thirdhand tobacco smoke (e.g., tobacco smoke residue, in this case on the clothing worn by a smoker).

These instances provide examples of how powerful this legal remedy can be. Here, the danger of death and/or serious disability from exposure to the coronavirus in a classroom would seem to be much higher than the risk posed by the secondhand tobacco smoke entering another professorial office via a common vent/duct/HVAC system, or of a small amount of tobacco smoke residue on a smoker's suit.

At this time, OSHA does have guidance (which may change from time to time) - but no legal rules - to protect employees from exposure to the coronavirus, so susceptible professors required to teach in a classroom setting, before an effective vaccine becomes widely available, could file a formal complaint with the federal OSHA and/or their state's OSHA agency under this general duty clause.

Many states, and even major cities, also have laws or regulations requiring employees to make reasonable accommodations to employees with a disability. Although being over 60 isn't regarded as a disability, hypertension (high blood pressure), diabetes, asthma, a compromised immune system, and even obesity can be.

In such a situation, being able to teach on line, as most professors did recently, rather than being forced to be subject to the risks of infection seemingly inherent in any classroom setting, would seem to be just such a reasonable accommodation.

Indeed, as InsideHigherEd explained in an article entitled "How to Responsibly Reopen Colleges in the Fall":

"The groups at risk from reopening are:
1) faculty and staff members who are at HIGHER RISK due to age or existing conditions that make them vulnerable . . .
To reopen responsibly, colleges MUST minimize the risks to those groups.” [emphasis added]

“Here’s how to limit risks to faculty and staff members:
they should be given a choice between working with good personal protective equipment (PPE) or stepping away for a year on furlough pay.
THOSE 60 OR OLDER OR WHO ARE OTHERWISE AT HIGH RISK should be asked to teach the limited number of remote classes that will have to be a part of a responsible reopening.”
[emphasis added]

In addition, the article below provides other legal remedies for concerned employees at high risk from the coronavirus.
My employer says I have to come in to work, but I’m at a higher risk for coronavirus complications / live with someone who is high-risk / don’t feel safe going to work. What can I do?
"You can request leave under the Family and Medical Leave Act, which is mostly unpaid but was expanded to include some paid leave during the pandemic. You can request accommodations under the Americans with Disabilities Act [ADA] but it will largely depend on if your health condition or risk factor is considered a disability. Diabetes, for example, is considered a disability, but being over 60 would likely not."

Here I'm both happy and proud to be able to point out that a special sensitivity or greater-than-usual risk of exposure to a substance in the workplace has long been held to constitute a legally-protected disability under the ADA, according to several legal precedents I helped establish regarding secondhand tobacco smoke.


Posted by: LawProf John Banzhaf | Jun 20, 2020 9:56:25 AM

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