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Feds and Governor Issue Edicts Requiring Boards of Education to Pay Employees and Bus Contractor Employees

In a seemingly coordinated move, both the Federal Government and Governor Lamont have passed edicts forcing boards of education to continue paying their employees and employees of contractors providing school transportation and special education services during the Covid-19 emergency.

Buried in the 800 plus page CARE Act, which was signed into law on March 27, 2020, is the following sentence:

“A local education agency, state institution of higher education, or other entity that receives funds under ‘Education Stabilization Fund,’ shall to the greatest extent practicable, continue to pay its employees and contractors during the period of any disruption or closures related to Coronavirus”

HR 748, Section 18006, 116th Cong. 2nd Sess.

The reference to the “Education Stabilization Fund” seems to suggest funds are included in the CARE Act to reimburse districts for at least part of the expenses.  Exactly what “to the greatest extent practicable” means is also unclear.

Then on March 31, 2020, Governor Lamont issued Executive Order 7R ( which provides among other things:

1. The State Department of Education shall continue to process grants to boards of education, including ECS.

2. School districts must continue to employ or restore to employment if already laid off, and pay school staff who are directly employed by local and regional boards of education “including but not limited to teachers, paraprofessionals and other support staff, cafeteria staff, clerical staff, and custodial workers, to the greatest extent practicable” (emphasis added) (this does not apply to staff laid off or separated for reasons other than Covid-19).

3. Enter into amendment or similar agreements with school bus services and special education providers to provide for continued partial payment to such contractors to allow for the payment of wages and health insurance to their “active” employees “to the greatest extent practicable.”  The board of education may require the provider to “attest and provide reasonable documentation of the costs of sustaining wage and health insurance benefits for employees.”

The expressed intent is to ensure continuity of services when school resumes.  The actual intent is more likely to provide continued income to these employees so as to avoid having to pay them unemployment benefits, and recognizing boards of education have already budgeted the funds.  There may also be Federal funds on the way to help offset the cost.

The term in both provisions, “practicable” is not defined, though generally it means “able” or “capable” of being done.

The above raises many questions.  No doubt some guidance will be forthcoming.  Until then, the takeaways are as follows:

1. If boards of education have not already laid off employees, you should not do so because of Covid-19.  If you have, you need to continue to pay them, whether you formally recall them or not.

2. You should engage your bus and special education providers to determine what their actual costs are for employee wages and health insurance (if any) and what portion of the daily fees that represents, and prepare on MOA providing for the continued payment of that portion of the fee for services related to wages and benefits.  It is unclear what “active” means in the context of a school bus company, but the intent seems to be to provide income continuation to the employees who provide bus services to your district.

As further guidance becomes available, we will provide further updates.  In the meantime, feel free to contact Floyd Dugas or one of our other education attorneys should you have any questions about how to implement these new requirements.