PA 149: Temporary Relief for Substitute Teacher Shortage

Substitute teachers do not need to be teachers! Actually, it is not that simple, despite the news headlines. The recently enacted Public Act 149 of 2021 (PA 149) amends Section 1233 of the Revised School Code to permit, in certain circumstances, a school to assign a person without a teaching certificate or substitute teacher permit to a substitute teaching position if certain key requirements are satis­fied. The law was effective December 27, 2021, and expires June 30, 2022.

A school may assign as a substitute teacher a person who does not hold a teaching certificate or permit if all of the following re­quirements are satisfied:

• The person has a high school diploma or a high school equivalency certificate;
• The person is currently employed by the school or works at the school (e.g., as an independent contractor); and
• The school satisfies PA 149’s wage requirements.

The PA 149 wage requirements are two-fold. If the person’s school wage before becoming a substitute is higher than the wages paid to a substitute teacher at the school, then the person must be compensated at the higher rate. But, if the person’s school wage is lower than the wage paid to a substitute teacher, then the person must be compensated at the higher rate. The Act does not address situations where there is a range of wages amongst substitute teachers at a school. To ensure compliance, a school should consider paying a person employed pursuant to PA 149 the greater of that person’s current school wage or the wage of the school’s highest-paid substitute.

PA 149 prohibits a school from discharging or retaliating against a person solely for declining assign­ment as a substitute teacher.

Criminal Records

Revised School Code Sections 1230 and 1230a typically require a school to request, receive, and review a criminal history check report and a criminal records check report before employing a person or allowing a person to regularly and continuously work under contract at the school. The Revised School Code may also prohibit employment or assignment, depending on report results.

For a current employee or a person currently assigned to regularly and continuously work under contract at a school, the school should already have re­quested, received, and reviewed the reports. The school is not required to go through the process again before assigning that person as a substitute teacher.

For an individual who works for the school, but not in a capacity where reports were already obtained (e.g., not working regularly and continuously), the school must request, receive, and review the reports before assigning the person to a substitute teacher position. Although Revised School Code Sections 1230 and 1230a contain an exception that allows schools to conditionally employ or assign a person before receiv­ing the reports, that exception does not apply to someone employed or assigned pursuant to PA 149.

Contracts

Many schools receive substitute teacher services from an independent contractor or third party service provider. Before assigning an independent contractor or an employee of a third party service provider to a substitute teacher position under PA 149, school officials should review the current contract(s) with the independent contractor or third party. Some third-party contracts prohibit employment of that party’s employees during the contract term and within a certain time after the contract expires.

School officials also should review current bargain­ing agreements to determine whether an agreement’s recognition clause would cause a PA 149 substitute to become a bargaining unit employee. If so, school officials must be cognizant of the collective bargaining agreement terms applying to those substitutes.

State Aid

Although PA 149 allows schools to assign substitute teachers without a certificate or permit in certain circumstances, the State School Aid Act (SSAA) was not amended to waive its requirement for substitute teacher certification, permit, authorization, or approval for pupil membership purposes. Accordingly, schools utilizing PA 149 substitute teachers should consider obtaining MDE approval for that assignment to avoid a potential state aid deduction. Generally, for a pupil to be counted toward a school’s membership under the SSAA, the student must receive instruction from a certified teacher or “an individual working under a valid substitute permit, authorization, or approval issued by [MDE]”. It is unclear whether a substitute teacher under PA 149 meets this standard.

Conclusion

Although PA 149 offers schools welcome relief for the current substitute teacher shortage, it has many legal implications. We have requested clarification from the MDE on the interplay between PA 149 and the SSAA. If MDE responds, we will share that information.