Connecticut Education Lawyer & Attorney : Berchem, Moses & Devlin Law Firm : CT Public Schools

Raised Bill 5702, referred to the Committee on Public Health in this session of the General Assembly, would allow a "respiratory care practitioner" to issue a written certification to a local or regional board of education providing that a child diagnosed with asthma be permitted to possess an asthmatic inhaler at all times while attending school.

This legislation would also add a check-box to the standard health assessment form completed by parents and physicians prior to school enrollment which would indicate whether such a certification has been issued allowing the child to carry an asthma inhaler in school. The bill would make similar changes to other portions of the statutes permitting self-administration of an asthma inhaler by a student who has been given the appropriate certification.

Would this legislation result in any changes in policy in your Connecticut school district? Tell us by posting a comment (see link at right).

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If the last few days are any indication, it promises to be a busy season for the General Assembly, particularly at the Committee on Education.  Multiple bills have been raised in both the Senate and the House pertaining to education of school-age children, and most of these have been referred to the Education committee. While by no means an exhaustive list, here are a few of the more interesting bills submitted to the committee or raised by the committee so far this session:

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The Connecticut State Board of Labor Relations recently issued a decision, Region 16 Board of Education, Decision No. 4270 (2007), in which it held that a unilateral change in the workload of Special Education Teachers constituted a prohibited practice. In doing so, the Board created an exception to the general rule that a unit wide fixed practice must be demonstrated in order for a union to establish a unilateral change based upon prior practice. 

Generally, it is an unfair labor practice for an employer to change a term or condition of employment in the face of a unit wide fixed past practice. Accordingly, where there has been a mixed practice, unions have been hard pressed to prove a violation. 

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In a recent decision, the 7th Circuit Court of Appeals (Illinois) has upheld the dismissal of a school district's lawsuit challenging certain provisions of the No Child Left Behind Act (NCLB) on the grounds that since NCLB was enacted after the Individuals with Disabilities Education Act (IDEA), the later-enacted NCLB provisions would trump any conflicting requirements in the IDEA.  Some parents and school districts have challenged the NCLB provisions requiring certain forms of standardized testing to be administered to all students, including those with disabilities, and limiting the forms of accommodations and modifications that may be made and the number of students who can be exempt from the testing, on the grounds that those provisions violate the "individualization" requirements of the IDEA.  The IDEA generally requires those accommodations and modifications necessary to permit a student to receive a free appropriate public education to be incorporated into a disabled student's IEP and implemented in all applicable situations, including testing.  However, in Board of Education of Ottawa Township v. Spellings, the court decided that even if these provisions are conflicting, Congress enacted NCLB more recently than IDEA and therefore must be assumed to have overridden the individualization requirements of IDEA with the accountability provisions of NCLB.

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In a decision rendered recently by the American Arbitration Association, a AAA Arbitrator has ruled that a board of education had just cause to terminate a custodian with a relatively unblemished record for repeatedly leaving work early and recording on their time sheets that they had worked their full shift. The case involved two evening shift custodians at Hawley School in Newtown. As is the case with many of Connecticut’s schools, there is no on-site supervision outside of the bargaining unit in the evenings. It was discovered these employees would routinely leave early yet record on their time sheets that they had worked the full shift. Relying on the fact that the collective bargaining agreement made it clear that no employee could leave early without authorization, and that the time sheets explicitly stated “FALSIFICATION OF TIME SHEETS IS CAUSE FOR IMMEDIATE DISMISSAL,” the arbitrator concluded that the employees clearly should have known that leaving early was grounds for termination. Although progressive discipline is normally required, the Arbitrator noted that “some acts of misconduct are so grave that progressive discipline is neither required nor appropriate.”, and “Repeated theft of time and filing false time records are acts of moral turpitude for which it is generally recognized that progressive discipline is not appropriate.” Readers interested in obtaining a copy of the decision can contact Floyd Dugas.

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On May 23, 2007, the Equal Employment Opportunities Commission (EEOC) issued guidance on the treatment of employees with “caregiver responsibilities.” While the federal discrimination statutes do not directly prohibit discrimination against “caregivers,” the new EEOC guidance does note that discrimination against caregivers that is grounded in a federally protected class, such as sex or disability, can be used as a basis for such a claim. “Family Responsibility Discrimination” as the theory is becoming known, is gaining popularity.  School Districts are not immune from such claims. Generally speaking, a caregiver is one who provides daily care for a child, elderly or disabled family member. Typically the caregiver is a female. Of course, however, such claims are not limited just to women. Such claims have typically arisen in the following situations:

·     Denying a woman an assignment or promotion based on the belief that she may not want to work the extra hours or to relocate.

·     Disciplining a caregiver for absenteeism disproportionately to an individual without caregiving responsibilities.

·     Failure to hire based upon stereotypical assumptions about external demands.

·     Denying a leave of absence or intermittent leave to deal with an ill or disabled family member.

·     Failing to hire a single mother (or father).

·     Subjecting a woman to a hostile environment because she is a parent with a young child or cares for a family member with a disability.

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On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (“NDAA”). Section 585 of the NDAA amends the Family and Medical Leave Act of 1993 (“FMLA”). The NDAA provides two new types of FMLA leave to employees with family members serving in the military:

1. Caregiver Leave: Permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” The leave described in this paragraph is only available during a single 12-month period. This caregiver section is effective January 28, 2008.

2. Call to Duty Leave: The NDAA also permits an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” Technically, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.”

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