Legal Update Memo No. 04-2022 – Governor Issues Executive Order to Provide Temporary Flexibility Around COVID-19 Related Staffing Shortage

Download pdf: 04-2022 – Governor Issues Executive Order to Provide Temporary Flexibility Around COVID-19 Related Staffing Shortage w. Attachment (LMS)

Governor Gavin Newsom signed Executive Order N-3-22 on Tuesday, January 11, 2022, to allow K-12 schools greater flexibility in meeting short-term staffing needs for in-person instruction related to the current surge in COVID-19 cases driven by the Omicron variant.

The Governor’s Executive Order provides immediate relief by temporarily lifting limitations in place for retired teachers to return to the classroom, allowing student teachers to serve in classrooms on their own, extending the number of days that a substitute teacher can serve, and providing a fast track for emergency credentials. The Executive Order applies to school districts, county offices of education, and charter schools.

The order allows for the following through March 31, 2022:

  • Substitutes may serve in a single general education assignment no more than 120 days through March 31, 2022. Note that the previous 30-day limitation was already extended to 60 cumulative days for general, special, and career technical education assignments through July 1, 2022.
  • Waives the requirement in Education Code section 46300 for student teachers to be supervised by a credentialed teacher for purposes of calculating average daily attendance for apportionment through March 31, 2022.
  • County offices of education may issue a temporary certificate to expedite placing a substitute teacher in a classroom. The requirement to submit an application to the Commission on Teacher Credentialing is waived. However, substitute teachers who receive the temporary certificate under the Order still must hold a bachelor’s degree and obtain a certificate of clearance.
  • Waives limitations on post-retirement earnings and the break-in-service requirements for STRS retirees who are at normal retirement age to allow them to serve as substitute teachers.
    • Suspends the 180 day break-in-service requirement for retirees through March 31, 2022.
    • Suspends post-retirement compensation limitations and procedural requirements for appointment under Education Code section 21214.5(a)-(g) for compensation earned during the 2021-2022 school year through March 31, 2022 for all STRS retirees.

Please note that the waivers for retirees apply to those retirees who are at normal retirement age, which is defined as “60 years of age, or 62 years of age for a member subject to the California Public Employees’ Pension Reform Act of 2013, which is the age upon attainment of which the member becomes eligible under the Defined Benefit Program for a service retirement allowance without reduction because of age and without special qualifications.” (Cal. Educ. Code § 22148.) That means if your local educational agency allows for earlier retirement, those retirees may not qualify under the terms of the Executive Order.

To take advantage of these options, school districts, county offices of education, and charter schools are required to make a written finding stating that the temporary staffing flexibility will support maintaining in-person services for students despite staffing shortages caused by the Omicron-driven rise in COVID-19 cases. This written finding must be signed by the school district superintendent, county superintendent of schools, or charter school’s leader, or such officials’ designee, and made available to the public upon request.

The Executive Order can be found here, and is also attached for reference.

Please contact our office with questions regarding this Legal Update or any other legal matter.


The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

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