Jaburg Wilk


What Arizona Teachers, Professors, and School Employees Need to Know if They Feel Unsafe Returning to In-person Class Instruction Because of COVID-19

Categories: Employment, Article

Teachers concerned about returning to work due to COVID

Many employees of schools and universities are fearful about returning to work due to concerns about contracting COVID-19. There are many state and federal laws that offer protections to these employees.

There is one particular Arizona law that applies to all employees of Arizona school districts, community college districts, and universities, including teachers and professors. It has a very short ten-day statute of limitations and several specific requirements that must be satisfied to get protections.

The Arizona law, A.R.S. § 38–532, makes it unlawful for an Arizona school or college to take any adverse action against an employee who files a protected complaint. A complaint is considered protected when the employee complains about any of the following:

  1. violation of any law
  2. mismanagement,
  3. gross waste of monies, or
  4. abuse of authority.

Complaining that a school or college is not taking appropriate precautions to protect against the spread of COVID-19 would likely qualify as both a violation of a law and mismanagement. There are many laws that require institutions to protect their employees, students, and visitors. However, complaints, known as disclosures under this law, must satisfy very specific requirements.

The disclosure must be in writing and contain the following information:

  1. date of the disclosure
  2. name of the employee making the disclosure
  3. description of the violation
  4. if possible, the date ranges in which the violation/s occurred.

The complaint must be made to a "public body." A public body includes the Arizona Attorney General, Arizona legislature, Arizona governor, a federal, state, or local law enforcement agency, the county attorney, the governing board of a community college district or school district, the Board of Supervisors of the county, or an agency director.

With respect to employees of a school or college, it would generally be best to submit a compliant to the school or university governing board. It is not sufficient for the employee to simply report their concerns to the principal/president of their school/university. The complaint must be to a "public body." The failure to submit a proper written complaint to a public body bars them from pursuing legal action under the law, A.R.S. § 38-532. In other words, an employee who was retaliated against because they complained only to their principal would not have protections under this statute.

If the employee is retaliated against for complaining, they can file a complaint with their school or college district if they have established an independent personnel board to hear such matters. If not, the employee may file a complaint to the Arizona Personnel Board. Filing the complaint is not particularly difficult, but filing it within the 10-day statute of limitations is problematic and often means that the employee cannot bring a claim because they didn't act fast enough.

There is a debate among employment lawyers whether an employee of a school or college can also bring a claim under another law, A.R.S. § 23–1501, which makes it unlawful for an employer to terminate an employee because they complained about a violation of an Arizona statute or regulation. Some attorneys believe that an employee of a school or college may only bring a claim under the first law, A.R.S. § 38-532.

A claim under A.R.S. § 38–532 is an administrative complaint with an Administrative Law Judge. A claim under A.R.S. § 23–1501 must be pursued in court. The types of damages that an employee can recover under each statute differ.

The Arizona Board of Regents, which governs the three state universities in Arizona, has its own procedure for filing complaints under A.R.S. § 38–532. The three Arizona universities are supposed to designate a hearing officer and implement their own rules to govern such disputes.

If you are an employee of a school or university in Arizona and have concerns about returning to work due to COVID-19, you should meet with an experienced attorney to understand all of the rights and obligations before taking any action.

About the Author: Jeffrey Silence is a partner at the Phoenix law firm of Jaburg Wilk who practices employment law. He helps employers and employees address any employment issue they may have by finding creative solutions to their problems.