SCRANTON – A trio of Scranton School District employees have denied the District’s opposition to its lawsuit over rules it implemented last month requiring them to perform their paraprofessional duties inside students’ homes if virtual learning once again takes place, despite the ongoing COVID-19 pandemic and its pervasive Omicron variant.
Elizabeth Lucas and Angela Gieda of Scranton and Kimberly Spindler of Moosic filed suit in the Lackawanna County Court of Common Pleas on Jan. 14 versus the School District of the City of Scranton and the Board of School Directors of the City of Scranton.
“Prior to the 2020-2021 school year, Personal Care Assistants performed all functions exclusively in District facilities and never traveled to or worked in student homes for any reasons. Due to the COVID-19 pandemic, the District conducted virtual learning for the first few months of the 2020-2021 school year,” the suit said.
“As a result of negotiations, at times contentious, the SFT and the District entered into a Memorandum of Understanding dated Oct. 8, 2020, concerning the working conditions of PCAs during the pandemic. Through the MOU, and having established significant safeguards serving to protect the safety and well-being of its members, the SFT consented to the PCAs entering the homes of their students in order to provide support while the students participated in virtual learning. By its terms, the MOU applied to the 2020-2021 school year only.”
The suit added that PCAs never again worked in a home setting once the District returned to in-person teaching in March 2021.
On Jan. 5, 2022, Sharon Baddick, the District’s Chief of Special Education and Support Services, issued an e-mail titled “PCA Guidelines for Virtual Instruction” to all paraprofessionals in the District. The e-mail contained an attachment that Baddick claimed to “outline the duties/responsibilities of PCAs (and case managers) during times when a decision is made to temporarily switch to virtual learning.”
“The attachment to the e-mail, titled ‘Expectations Regarding PCA Support During Virtual Learning’ sets forth a policy containing information ‘intended for implementation if/when it becomes necessary to shift to a virtual learning platform due to the pandemic or other emergency situations.’ Although not specifically stated, the Expectations Policy is obviously a response by the District to the highly contagious Omicron variant in the (likely) event that it will be forced to move to virtual learning. The Expectations Policy provides discretion to ‘case managers’ to determine which students will require PCAs in the home setting,” the suit stated.
“Unless the parent signs a document indicating that a PCA is ‘not desired’ in the home, the PCA assigned to that student must travel to the student's home and perform their duties in that location. In order for an assigned PCA to gain entry to the home, the family must merely sign and check a box on a form indicating the parent ‘will immediately notify the PCA and/or case manager if you or any member of your family becomes ill with COVID-related symptoms,’ and that the parent ‘will notify the PCA and/or case manager if you or any member of your household has traveled to an area that has been designated as having a high incidence of COVID that requires a period of self-isolation.”
According to the plaintiffs:
• No District administrators or employees are inspecting the student’s home before the PCA is compelled to enter the home, nor has the District required the residents to adhere to the CDC safety guidelines that are practiced in the schools;
• The District is not requiring the students or their families to produce proof of negative COVID test result, and has not imposed any testing requirement whatsoever; and
• The District has not provided PPE to PCAs who must enter private residences.
The Expectations Policy also requires PCAs to travel to and work in students’ homes when virtual learning is implemented, and when the District’s facilities are closed due to inclement weather (though a lone exception exists when roadways are closed due to a State of Emergency declared by the Governor of Pennsylvania).
“The District has not implemented any other policy requiring any employees, including teachers, to work in students homes in the midst of a global pandemic – when travel becomes so dangerous as to necessitate school closures – or under any other circumstances. The District forwarded a copy of Baddick’s e-mail after it had been distributed to District staff,” per the suit.
“The Scranton Federation of Teachers had no prior knowledge of the Expectations Policy prior to receipt of the e-mail. The District has imposed material changes to the terms and conditions of employment of PCAs as contained within the Expectations Policy without negotiating with, and without the agreement of, the SFT.”
On Jan. 11, the SFT filed an unfair labor practice charge against the District with the Pennsylvania Labor Relations Board, alleging a violation of the Pennsylvania Public Employee Relations Act.
The plaintiffs alleged that not a single school district in the Commonwealth of Pennsylvania is currently requiring any employees to perform work inside the homes of its students – and that no other school district in the Commonwealth of Pennsylvania is requiring some employees to travel to students’ homes to perform their duties, at times when the entire school district has been shut down due to inclement weather.
UPDATE
On Feb. 14, the defendants filed both a response in opposition to the plaintiffs’ motion for a preliminary injunction and an answer to the plaintiffs’ request for declaratory judgment and injunctive relief – in sum, the defendants argued that they are merely complying with the law when they implemented the rules in question.
“Defendants have not made a unilateral change in the implementation of plaintiffs’ employment terms and conditions. Rather, provision of in-home special education, supports and related services in accordance with individualized student needs is a requirement of state and federal law. Moreover, the Expectations Document is an appropriate exercise of management discretion to clarify and explain how to function in light of continuing and highly unusual pandemic-necessitated changes to student instruction,” the response stated, in part.
“Defendants state that state and federal law require that public schools assure a free, appropriate public education to disabled students. The students needing in-home support during periods of school closure and a change to virtual instruction are the absolutely most in-need students. Of all the students in the Scranton School District, only about 20 have been found to need in-home support in order to receive a free, appropriate public education, a determination that is based on an individualized, case-by-case review. Plaintiffs seek an order enjoining the school district from requiring PCAs to provide in-home support to the most vulnerable students, which would cause defendants to violate state and federal law and would likely cause irreparable educational loss to the few and very vulnerable students served with in-home supports.”
In a Feb. 24 reply to the new matter, the plaintiffs denied the defendants’ new matter as conclusions of law to which no response was required.
For counts of declaratory judgment in violation of PERA and equitable action seeking injunctive relief, the plaintiffs are seeking:
• An order declaring that the District violated Section 1201(a)(1), (5) of PERA, by refusing to bargain collectively in good faith with the SFT;
• A temporary injunction enjoining the District from implementing the Expectations Policy that it unilaterally implemented Jan. 5, from further compelling the plaintiffs from entering the home of any District student, and entering such other relief as the Court deems just and proper.
The plaintiffs are represented by Marc L. Gelman of Jennings Sigmond, in Philadelphia.
The defendants are represented by Karl A. Romberger of Sweet Stevens Katz & Williams, in New Britain.
Lackawanna County Court of Common Pleas case 2022-CV-00174
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com