Officials with the Capital School District and the Capital Educators Association (CEA), are challenging complaints from educators and staff about how COVID-19 protocols are being handled at Dover High School (DHS) as reported by WDEL.
Dover High teacher Leann Ferguson reached out to WDEL in mid-January after she said she learned that a teacher who had tested COVID positive was told to return to school. She told WDEL, for her, it was "the last straw."
Among several complaints, Ferguson was critical of district notifications of positive COVID tests among students and staff, and questioned the district's handling of reasonable accommodation requests under the Americans with Disabilities Act (ADA) for teachers who wanted to continue teaching remotely.
Ferguson has been questioning union officials for months about COVID-related issues.
In a November email to CEA President Lisa Whiteman, Ferguson asked "would you please advise as to what CEA leadership actions are being taken to address the many unresolved concerns of staff members? The CEA membership deserves to have clear, consistent and transparent plans for successfully reopening our classrooms.
"The members need to have copies of the DPH and CDC guidance the DO (District Office) says it is following including all District procedures demonstrating full compliance with CDC and DPH recommendations," Ferguson wrote. "The safety and well-being of the staff and students should be the most important factor as we proceed forward."
Capital School District Interim Superintendent Dr. Sylvia Henderson issued the following response to WDEL after the story's publication.
“The Capital School District has reviewed the WDEL article concerning employee safety concerns at DHS. Most educators are thrilled to be able to return safely to their profession. We have been able to accommodate many employee requests. We invite the anonymous sources to identify themselves publicly so that the entire story can be told. Short of that, each COVID-19 occurrence and situation is different. The District follows all DPH and CDC guidelines regarding isolation, quarantine and return to work, as we did in the situation referenced in the article. ADA accommodations are individually tailored with the employee and district engaging in an interactive process. It is misleading to state that an employee’s contract being paid off means that they have been 'terminated.' Rather, it refers to the process by which an employee’s salary is balanced to reflect actual days worked on their 10 month contract when their salary is spread over 12 months. No employee has been terminated as such action would require board of education approval.”
In addition, CEA President Whiteman sent a rebuke of the WDEL article in a letter to CEA members on January 26, 2021.
In it, Whiteman said Ferguson was a member of CEA and has offered support to some members at the high school with various building level issues in the past, but was not a union official. She wrote:
"That person holds no elected office in CEA, is not recognized by CEA as a representative of the membership as a whole, nor are they considered a public spokesperson for the CEA membership. In short, the educator was not authorized to speak on behalf of CEA."
In speaking to WDEL about COVID-related issues, Ferguson, a social studies teacher, identified herself as a building union representative but did not say she was speaking on behalf of the union nor was she ever identified by WDEL as being affiliated with the Capital Educators Association.
Ferguson said she was speaking on behalf of several teachers who were afraid to speak out themselves for fear of retribution.
In emails obtained by WDEL as far back as late July, 2020, Ferguson was questioning teachers' union officials about COVID related issues pertaining to the potential return of teachers to the classroom.
In her letter, Whiteman also said:
"CEA has investigated the allegations, and has met with Capital School District representatives and found the article to not be completely true in most instances. After assessing the situation, we believe that the proper protocols have been followed and feel that there are no further issues that remain at this school or within the district in regard to the topics reported to WDEL in the article from January 25, 2021."
WDEL requested an interview with Whiteman to clarify the instances that she found "not to be completely true" and the details of the investigation. She declined the request and deferred to a representative from the Delaware State Education Association (DSEA).
Also in her letter to CEA members, Whiteman wrote: "Please know CEA had no prior knowledge of the issues brought forth in the article."
However, Whiteman's email was also apparently found not to be completely true.
WDEL has obtained emails, dated October 13, 2020, on which Whiteman was copied, in which Ferguson raised questions about the district office's handling of teacher requests for reasonable accommodations under the Americans with Disabilities Act (ADA) which has become a hot-button issue in districts up and down the state.
At that time Ferguson wrote to CEA's Uniserve director Mike Hoffman with the DSEA, calling the district's handling of reasonable accommodation requests a "pressing situation on the horizon."
"We have already been contacted by staff members who have submitted the required documentation related to requesting ADA compliant accommodations," wrote Ferguson. "The manner in which the [district office] is handling this has given rise to a fear that staff members will be subject to disparate treatment under the law."
Hoffman responded in an email with Whiteman copied and obtained by WDEL:
"I understand and appreciate your concerns," he wrote. "There are questions being raised in other districts as well around ADA accommodations. I do agree that a lot of power, when it comes to deciding who gets what accommodations has been given the HR departments."
Reasonable accommodations: a complex process
Hoffman, the DSEA representative for several school districts including Capital, did speak with WDEL about the reasonable accommodation process in an effort to explain its complexity. In the Capital School District, he said a teacher can request reasonable accommodation with a doctor's reference. A meeting is then held with the district human resources director, who then sends the teacher a list of accommodations that can be provided.
"By ADA law there has to be a collaborative conversation between the employer and the employee, and I want to stress collaborative means it goes both ways," said Hoffman.
The employee takes those accommodations back to their physician to see whether it meets the teacher's needs. If in the doctor's opinion those accommodations are not enough, then the teacher has to go back for another meeting with the HR director.
"At that next meeting the HR Director will decide, if the doctor says the accommodations aren't suitable that the employee still needs to work from home then that HR director has to decide if they're going to grant that. And I can tell you in my experience to this point I don't know of anybody, specifically in the Capital School District, who has been denied that accommodation after the doctor has said that they needed that," said Hoffman.
"Where it breaks down is if the employee does not go back to their doctor and present those accommodations, that kind of breaks down the whole collaborative process. Then the HR director is left to decide if those accommodations are suitable or not," he said.
Hoffman said if the employee is still not satisfied with their options, they can request a leave of absence or they could file a lawsuit.
WDEL had reviewed a letter from a now former teacher, requesting an unpaid leave of absence after their request to teach remotely under ADA reasonable accommodations was denied. The teacher's contract was paid out and benefits ended.
"From my point of view from reading the article it sounded like: 'I asked for accommodations, I wasn't given them I was let go,'" said Hoffman. "I just know from where I sit that didn't happen."
"You're not an employee of the district," continued Hoffman. "It doesn't mean you can't come back, but you're not an employee of the district at that time. But it wasn't because this person was terminated, or let go, that was a choice by that person to take that leave of absence.
"I know that no one was terminated because they didn't get their ADA accommodations," said Hoffman. "There's not been an employee terminated around ADA accommodations whatsoever. An employee may have taken a long term leave of absence but for anybody to be terminated that is done through board action and there hasn't been anybody. So I found that to be a false accusation."
WDEL has also reviewed the initial reasonable accommodation request of another teacher, who wished to remain anonymous, fearing retribution. The request contains notes from two doctors both recommending remote teaching. The district HR director responded with a list of in class PPE accommodations.
WDEL asked Hoffman why a teacher would have to go back to their doctor a second time when the first request was accompanied by doctors' recommendations for remote teaching.
"I can't answer that," responded Hoffman. "All I can say is I believe that in that request the HR director, not being a medical doctor, is trying to gather all the information they can to make the best decision."
In a follow-up email to Capital School District, when asked if the decision on reasonable accommodations was a decision made solely by the HR director or whether there was a review committee which may, or may not, include a medical professional from the district, Capital Interim Superintendent Henderson told WDEL:
"[The HR director] confers with the employee’s human resource specialist and other administrators, as necessary, to determine whether the requested accommodation is reasonable and would not be an undue hardship, or whether other accommodations can meet the employee’s needs."
Hoffman said COVID has created a difficult situation.
"Prior to this year, I was never in an ADA accommodation meeting, and this year I've been in probably, 35."
A 20-year veteran of Dover High School, who just retired because of the COVID, felt like she didn't have much of a choice.
"My original plan was to stay through the 20-21 school year, but due to COVID I feel like the unsafe environment for me, yeah, it was time to bow out," said former business teacher Pamela Moore.
Moore was teaching remotely, but because the district wanted teachers in the school building, she had to use her sick leave. She said she was burning sick days, but still working.
"If I was teaching from home how is it any different me sitting at my desk at home Zooming, teaching classes, grading papers, making contacts, versus going in my car and sitting in the building, in my classroom? There's no difference," said Moore.
Hoffman said he was not aware of other claims made in the article, including that there were not enough substitute teachers at Dover High School, or too many children were in classrooms above protocol limits.
"If it is, and they're not following the protocol, and they're not following the guidelines set out by DPH and CDC, that's something, as the union, we can address that, but that hasn't been brought to my attention," said Hoffman.
But WDEL has reviewed several emails from Dover High School officials requesting leads on hiring substitute teachers "to fill multiple long-term sub positions that will be needed to meet the needs of our students as we plan to reopen," as well as requests for staff to ensure the school is alerted if they're going to be absent with the district saying, "subs are at a premium."
In addition, a staff "shout out" note from Dover High School principal Dr. Courtney Voshell thanked two people for "volunteering to cover classes in which we did not have a substitute."
Hoffman also claimed allegations that an employee who tested positive for COVID and was told to report to school did not reach him.
WDEL spoke with that teacher on the condition of anonymity for fear of retribution. They confirmed that they were told to report to work in-person, despite receiving a positive COVID test.
"I understand the concerns of the employees, I do, I get it, and they're very valid concerns but I also know it hasn't been brought to my attention around some of those concerns," said Hoffman. "The big one being I don't know the situation around someone being told that if they have COVID they have to come to work. I find it hard to believe that the district would do that so I think there's probably, we're not getting all the information, and I don't know who they are talking about."
Hoffman added he can't follow through on anonymous claims.
"If they're willing to put their name out there, then we can have a more specific conversation, but if they're not I can't go into any deeper, and I have emails also," said Hoffman.