MDE Temporarily Waives Daily Substitute Permit Limitation

On November 17, 2022, the Michigan Department of Education (MDE) issued a memo waiving, for the 2022-23 school year, the 90-day teaching limitation that typically applies to Daily Substitute Permits. The announcement is intended to assist schools with the ongoing statewide teacher shortage. MDE’s memo is available at:

https://www.michigan.gov/mde/-/media/Project/Websites/mde/Memos/2022/11/Daily-Substitute-Teaching-Permits-90-Day-Limitation-Waiver.pdf?rev=a777082e52f244008685bccb3f9eb09b

Daily Substitute Permits

State School Aid Act Section 163 authorizes MDE to initiate state aid deductions when a school employs an instructor who does not possess a teaching certificate, substitute permit, or other approval issued by MDE. Administrative rules allow schools to apply for a Daily Substitute Permit, which is valid for one school year for classroom teaching when the certified teacher regularly assigned to that classroom is temporarily absent. The permit is not valid for an assignment to the same classroom for more than 90 consecutive calendar days, unless MDE grants an extension.

MDE Memo

Although intended to relax Daily Substitute Permit require­ments, MDE’s memo appears to contain conflicting information. It announces that the State Superintendent waived the Daily Substitute Permit 90-day limitation for schools “that have applied for the waiver.” It also suggests, however, that the waiver was granted for all schools, stating: “No further action is required to extend the validity of the Daily Substitute Permits issued during the 2022-2023 school year.” The memo adds that Daily Substitute Permits will be valid for assignments until the end of this school year or August 31, 2023, whichever is later.

Our firm contacted MDE’s Office of Educator Excellence, which clarified that the 90-day limitation is waived for all schools regardless of whether a school applied for a waiver. Accordingly, all Daily Substitute Permits issued for this school year will remain valid until the end of this school year or August 31, 2023, whichever is later, without any further action by schools and without a 90-day limitation. There is one significant caveat: the waiver does not apply to assignments in special education classrooms.

Caution

Although the increased flexibility granted by MDE’s memo is welcome news for many schools, school officials are reminded that Revised School Code Section 1236 grants substitute teachers employed by a school and assigned to one specific teaching position for at least 60 days certain rights. After 60 days in one assignment, the substitute teacher is entitled to leave time and “other privileges” granted to the school’s regular teachers, including a salary equal to at least the minimum salary on the school’s teacher salary schedule. While not defined by statute, an informal Attorney General opinion suggests that “other privileges” are benefits granted to regularly employed teachers by a collective bargaining agree­ment.

Additionally, a substitute teacher employed by a school for at least 150 days during a school year of at least 180 days must, after all other teachers are reemployed, be given the first opportunity (either during that school year or the immediately succeeding school year) to accept a contract for any position for which the substitute teacher is certified. The same right of first refusal applies to a substitute teacher employed for at least 180 days by an intermediate school district that operates any program for at least 220 days. This right of first refusal does not apply to a substitute teacher who fulfills the duties of a “teacher who is unable to teach due to a terminal illness.”

Importantly, rights granted by Revised School Code Section 1236 apply only to substitute teachers employed by a school, not substitute teachers employed by a third-party that provides services to the school. RSC Section 1236 defines a “day” as “the working day of the regular, full-time teacher for whom the substitute teacher substitutes.” A quarter-day, half-day, or other daily fraction of the substitute’s service must be counted as the fraction worked unless the school acknowledges and pays a fraction of a day as a full day, in which case the time counts as a full day.

Notwithstanding MDE’s November 17, 2022 memo, school officials should monitor the number of days that each school-employed substitute teacher works. Failure to do so could significantly limit the school’s discretion over future hiring and salary decisions.