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Remote Learning and the Duty to Bargain During Coronavirus Pandemic

Labor & Employment Labor & Employment

As we previously reported, on March 27, 2020, the Illinois State Board of Education (ISBE) and the Governor issued several resource documents that address changes to the remote learning landscape in Illinois schools during the shelter in place due to COVID-19. These resource documents included the Governor’s Executive Order (2020-15), ISBE’s emergency rule and related declaration, ISBE’s updated joint statement and guidance, and ISBE’s Remote Learning Recommendations During COVID-19 Emergency.

As reflected in these resources, it is clear that all days from March 31, 2020 through the end of the Governor’s disaster proclamation have been declared Remote Learning Days, during which time schools must conduct instruction remotely. Approved instruction and planning on Remote Learning Days includes instruction provided through an e-learning program under Section 10-20.56 of the School Code, or a Remote Learning Day Plan approved by a school’s superintendent or chief administrator. In addition, ISBE issued remote learning recommendations to assist schools as they refine existing remote learning plans and develop new ones in the wake of the continuing health emergency.

What may be less than clear is the intersection of these remote learning resources and the duty to bargain under the Illinois Educational Labor Relations Act (IELRA). ISBE’s emergency rule provides that “work connected” to remote learning day plans “shall be mutually agreed upon” between employers and the unions that represent their employees. As we know, however, the interpretation and scope of the IELRA’s duty to bargain, and the determination of what is and is not a mandatory subject of bargaining, are the exclusive purview of the Illinois Educational Labor Relations Board (IELRB). The ultimate resolution of any apparent tension between remote learning and the duty to bargain remains to be seen, particularly where an employer may need to implement decisions about remote learning under exigent circumstances—something the IELRB itself has recognized may outweigh the benefits of bargaining.

With that said, the effects or impact of any decision to implement remote learning on unionized employees’ terms and conditions of employment would be mandatory negotiable. And in the tremendous spirit of joint collaboration, creativity and problem-solving we see continually emerging at this time, reasonable mutually acceptable agreements are within reach. As always, we are here to assist you with your negotiations and navigate these bargaining issues.