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Practical Guidance: Using Non-Teaching Staff as Substitute Teachers Under Public Act 149 of 2021

January 11, 2022

As addressed in our Jan. 1, 2022 E-Alert, Governor Whitmer has signed a bill temporarily permitting Michigan public schools to use non-teaching staff, such as secretaries, paraprofessionals, and other workers, as substitute teachers through June 30, 2022. The bill, codified as Public Act 149 of 2021 (the “Act”), amends Section 1233 (10) through (12) of the Revised School Code. In response to several client inquiries about the Act, we are providing additional guidance for implementing these new substitute teacher requirements.

Generally, Section 1233 of the Revised School Code permits school districts to employ a person who does not have a teaching certificate as a substitute teacher so long as that person has at least 60 semester hours of college credit or an associate degree from a college, university, or community college or has qualifying expertise to substitute teach in an industrial technology education program or a career and technical education program.

Public Act 149 broadens these requirements by temporarily allowing school districts to employ individuals who do not possess a teaching certificate or permit as substitute teachers so long as the individuals: (1) are otherwise employed by or work at the school district and (2) have a high school diploma or high school equivalency certificate. The Act precludes school districts from terminating any such individuals from their regular employment or retaliating against these individuals solely for declining a substitute teaching assignment.

According to the Act’s plain language, a school district may assign qualified individuals who either are “employed by” or “work at” the school district as substitute teachers. Thus, a school district may use individuals assigned to work at the school by third-party staffing agencies, such as EduStaff employees, as substitute teachers as well. Should a school district wish to use third-party staff as substitute teachers, we recommend working with the staffing agency to clearly define the substitute teaching assignment and clarify that the substitute teacher will continue to be employed through the third-party staffing agency in this role.

Implementation of the Act’s new requirements may also invoke collective bargaining obligations with union groups. We recommend school districts review their collective bargaining agreements, specifically Recognition Clauses and any language relevant to substitute teacher assignments. Unions may demand to bargain the Act’s impact on existing contract language and its effects on other terms and conditions of employment. Although the Act establishes the minimum salary amount that must be paid to individuals assigned to substitute teaching positions, unions may seek to bargain additional pay or benefits to bargaining unit employees assigned substitute teaching duties under the Act.

Finally, we note that the Revised School Code’s requirements regarding benefits to individuals who possess a teaching certification continue to apply when assigning these individuals to long-term substitute teaching positions. Section 1236 of the Revised School Code, for example, states that directly employed substitute teachers assigned to one specific substitute teaching position for more than 60 days must receive the privileges granted to regular teachers for the duration of the assignment, including pay not less than the minimum salary on the current salary schedule. This statutory provision also requires a school district to offer employment in the following school year to directly-employed substitute teachers who are employed 150 days or more as a substitute teacher, provided all other teachers have been placed in the following school year and the substitute teacher is certified to teach the following year’s available assignment. School districts should continue applying these requirements when assigning individuals who possess a teaching certification to substitute teaching positions.

If you have any questions regarding this Act or its temporary substitute teacher requirements, please contact a member of Clark Hill’s Education team.

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