Q: In response to winter storm that recently impacted Texas, my district closed for 5 days and offered virtual instruction for 2 days the following week. Can I pay all employees during the period of closure—what about the virtual instruction days?
A: Yes. The Board of Trustees can adopt a resolution that it serves a public purpose to continue compensating employees who were unable to work during the period of closure and also virtual instructional days.
Any resolution or similar action to provide employees compensation during a school closure should occur at an open meeting that complies with the Open Meetings Act. The resolution must at a minimum address the following:
- The public purpose served by continuing wage payments (e.g., increased morale, employee retention, public safety).
- The employees that will continue to receive wages with clear explanation of who receives what type of pay and when, see chart below.
- The dates or duration the employees will receive wages.
When considering payment during a school closure, first review your district’s board policy DEA (LOCAL). In the section titled “Pay During Closing” district policy may mandate pay for all employees during an emergency closure. If the policy makes payment mandatory, the Board must adopt a resolution establishing the purpose and parameter for such payments. If board policy DEA (LOCAL) does not require the payment, then the board may elect to pay employees via resolution.
Second, the district should consider its obligation to provide additional compensation, commonly referred to as premium pay, for nonexempt employees that were required to report to work during an emergency closing for a disaster, e.g. maintenance, custodial, food service. Again, if Board Policy DEA (LOCAL) mandates premium pay, premium pay must be provided for in the board’s pay resolution, or in the alternative, without a mandate, the board can elect to provide premium pay, which is typically one and one half times the employee’s normal rate of pay up to 40 hours per week. When providing premium pay, be aware that if the board elects to provide premium pay without a mandatory provision in board policy prior to the disaster, FEMA may not reimburse the district for any cost associated with premium pay. See https://www.tasb.org/covid-19-resources/documents/premium-pay-provisions.aspx. Also note, exempt employees should not be provided additional compensation after services have been rendered or a contract entered into and performed in whole or in part without complying with the provisions in Board Policy DEA (LEGAL) concerning pay increases.
Finally, consider the type of closure and employee eligibility for compensation. Due to COVID-19, and the availability of virtual instruction, the recent weather event is the first time many districts have had the opportunity to utilize virtual instruction rather than close due to weather. As such, policy does not contemplate compensation when a district is closed, operating virtually. As such, for days in which virtual instruction was provided, the district must consider the employees that will receive regular compensation for duties performed, payment pursuant to resolution, or premium pay pursuant to resolution in accordance with the duties performed and the type of closure. Below is a summary of the scenarios and options to consider.
|Type of Closure||Regular Pay||Regular Pay Pursuant to Resolution||Premium Pay Pursuant to Resolution|
|Closed||No Employees||All Employees||Employees required to report to facilities if Premium Pay required by board policy or elected for by the board.|
|Facilities Closed w/ Virtual Instruction Option 1||No Employees||All Employees, regardless of performance of assigned duties||Employees required to report to facilities if Premium Pay required by board policy or elected for by the board.|
|Facilities Closed w/ Virtual Instruction Option 2||Employees with duties assigned during period of virtual instruction. If fail to perform duties, pay or leave docked.||Only employees idled at no fault of their own with no duties to perform assigned (e.g. bus drivers, cafeteria workers, aides).||Employees required to report to facilities if Premium Pay required by board policy or elected for by the board.|
Due to the complexities surrounding compensation of employees with virtual instruction and premium pay, as well as potential to impact FEMA reimbursement, you may elect to contact your local school attorney to assist in drafting a resolution to ensure compliance with law and policy.