An independent arbitrator has ruled that Chicago Public Schools violated its contract with the Chicago Teachers Union by making employees such as clerks work in school buildings that may not have been safe.

The ruling that CPS did not fulfill its “promise” of “safe and healthful” working conditions came a day after a teacher at Funston Elementary died from COVID-19, according to the union.

The arbitrator ruled that clerks, assistants and others who have been reporting to school buildings during remote learning should be allowed to work from home when feasible, and gave the parties two days to agree on how to move forward.

Arbitrator Jeanne Charles issued the ruling Friday after remote hearings in September. For the arbitration trial, the union presented more than a thousand pages of evidence and testimony about conditions in schools.

The union has also sought relief through the Illinois Educational Labor Relations Board.

According to the union, Funston Elementary teacher Olga Quiroga died Thursday. She’d helped distribute school supplies at Funston starting before the new school year began until Sept. 10 and was taken to the emergency room by her family the following day, the union said.

CPS has not released information on COVID-19 cases at schools since the fall quarter began Sept. 8, but the union has identified cases at Funston, Canty and Mount Greenwood elementary schools, along with Lane Tech High School, where at least one case has been linked to last week’s in-person SAT testing.

“Reporting to work inside CPS school buildings increases the danger of infection by COVID-19, an airborne, highly communicable, deadly, and still not fully understood disease,” Charles wrote in the ruling. “The only way to eliminate the risk of COVID-19 infection and death is for School Clerks, School Clerk Assistants, and Technology Coordinators to work remotely.”

While acknowledging the district’s efforts to mitigate the risk of infection, Charles said that subjecting employees to increased risk for work that can be performed remotely "does not fulfill CPS’s contractual promise that its employees work in ‘safe and healthful conditions.’”

Whether each school building is safe to work in can’t be determined, so it’s “better to err on the side of allowing remote work, where feasible, since the extent of the inherently hazardous conditions presented by COVID-19 in each school building is unknown," the arbitrator wrote.

Letting people work remotely balances the needs of the employer and employee, Charles wrote.

"I find insufficient evidence that the Board’s school buildings are safe and healthful for these employees to work in; that the Board does not sufficiently mitigate the risk to these employees by directing them to work full time inside school buildings when certain duties can be performed remotely; and that CPS has therefore violated (the CTU contract),” Charles wrote..

Charles wrote that the district should let school clerks, assistants and technology coordinators do remote work when feasible, and sent the issue back to the two parties to attempt to come to an agreement about what can and can’t be done remotely. If, as often is the case, they can’t agree or have other disputes about implementing the ruling, it will go back to arbitration.

CPS officials did not immediately provide comment Friday.

Teachers union leaders pointed out the timing of the ruling amid reports that principals have been told to prepare for the potential of a hybrid second quarter, and the day after a teacher’s death.

“It’s tragic that this ruling — which irrevocably establishes that CPS schools are not yet safe to reopen — has come too late to have helped protect Olga’s life or protect other workers from COVID infection,” CTU President Jesse Sharkey said in a news release.

“We expect CPS to move immediately to protect the rest of our members in buildings by allowing them to begin working remotely today, as those workers did effectively from March through August," he said. “ ... The path to a truly safe reopening of our school buildings is through engagement with parents, talking to school communities and negotiating with the educators who know these schools best.”

According to the union, CPS hasn’t conducted government-recommended hazard assessments or tested the air quality in school buildings, many of which have poor ventilation.

More than half of CPS building were built before 1950, the oldest in 1893, according to CTU.

“We cannot succumb to the temptation to reopen schools because our lives may be easier for it," the union argued in arbitration documents. "The simple truth is that every time businesses and restaurants reopen, Covid-19 infection rates spike. And CPS is even less prepared to reopen than most. Its antiquated buildings are barely functional and do not provide the necessary air filtration and ventilation necessary for safety.”

CTU has called for a hold on reopening schools until conditions are safe has and demanded that CPS bargain with the union on that.

hleone@chicagotribune.com

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