Some employers and unions have provided FAQ sheets that can be misleading. Here is a brief analysis and rebuttal of some Q&A's that were sent to me. Perhaps it will be useful when you are talking with others.
We are not experts, so be sure to consult a proper professional before using any of the information below.
Q: Can P-12 school districts/BOCES compel employees to disclose their COVID-19 vaccination status?
A: Yes. Asking employees for proof of COVID-19 vaccination is not a disability-related inquiry and is permissible; however, asking why an employee did not get vaccinated may be a disability-related inquiry that violates the Americans with Disabilities Act (ADA). If an employee refuses to answer a question regarding vaccination status, they could be considered insubordinate. (See Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Section K, available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-andother-eeo-laws (last updated May 28, 2021)(EEOC Guidance)).
Analysis: Regardless of the legal rules that may allow employers to ask for proof of vaccination, many employees feel very violated being asked for this very personal and private information. In fact, some employees feel so violated that, even though they have been fully vaccinated, they choose NOT to submit proof of vaccination and instead accept mandatory Covid testing. Just because it is legal doesn't make it right. Segregation was once legal in this country, but that didn't make it right.
Q: Can an employer mandate the COVID-19 vaccine for its employees?
A: Likely, Yes. No federal law prohibits an employer from mandating that staff receive a COVID-19 vaccine. Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) may require an employer to provide reasonable accommodations due to an employee’s disability or sincerely held religious belief or practice, so long as the accommodation does not impose an undue burden on the employer. Vaccine mandates have been upheld by the U.S. Supreme Court in the past in response to a public health emergency. (Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 35 (1905)). In 1904, the New York Court of Appeals upheld as constitutional a smallpox vaccination mandate directed at school employees and students. (Viemeister v. White, 1 N.Y. 235, 238 (1904)). Although courts have not yet issued many decisions on this issue, federal courts in Texas and Indiana have upheld employer vaccine mandates and relied upon the U.S. Supreme Court’s decision in Jacobson. Some courts in New York have considered whether to temporarily restrain vaccine mandates, but those cases have not been decided on the merits of the claims. In terms of labor law, even if the employer’s decision to mandate vaccines is not negotiable, the local can demand to bargain the impact or effects of such decision. Locals should consult with their assigned Labor Relations Specialist.
Analysis: Just because it may be legal to force vaccination on employees doesn't make it right. Slavery was once legal in this country, but that didn't make it right. A recent study published in the well-known scientific journal ScienceDirect -Toxicology Reports shows that for every one person killed by Covid five people are killed by the vaccine. People need to analyze the risk vs. benefit of inoculation with their personal physician and NOT be forced to inoculate by their employer. The employer is not a medical specialist and they do not know the particular health situation of the employee. Union members must ask their union what they are doing to fight mandatory vaccination for employees.
Q: Does the employer engage in discrimination if it requires an unvaccinated individual to take COVID-19 screening tests?
A: A vaccine mandate that is neutral and of general applicability should not implicate the Free Exercise of religion clause of the Constitution, provided it has a rational basis. Requiring individuals who have not provided proof of vaccination to be tested is not discriminatory, as vaccination status is not a class protected by Title VII of the Civil Rights Act of 1964, the ADA or the New York Human Rights Law.
Analysis: According to The American Heritage Dictionary 5th Addition, the word “discrimination” is defined as "treatment or consideration based on class or category, such as race or gender, rather than individual merit; partiality or prejudice". Vaccinated and unvaccinated people are two separate "classes or categories". According to one study by the CDC, 74% of Covid cases occurred in fully vaccinated people compared with 26% of Covid cases occurring in unvaccinated people. As a result of this study the CDC advised all vaccinated people to wear masks as vaccinated people can spread the virus very easily. Therefore, it is pure unscientific discrimination to require mandatory Covid testing for unvaccinated people and not for vaccinated people. Requiring only unvaccinated people to receive Covid testing is a coercive political play, not a scientific health initiative. Ask your union leaders what they are doing to fight this discrimination?
Q: Can an employer mandate COVID-19 testing for employees?
A: Yes. The EEOC Guidance at Section A.6 notes that “the ADA requires that any mandatory medical test of employees be ‘job related and consistent with business necessity.’” The EEOC further states that “applying this standard to the current circumstances of the COVID-19 Page 2 of 6 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.” (EEOC Guidance, A.6). The New York State Department of Health issued emergency regulations pertaining to COVID19 testing in P-12 schools. (See 10 NYCRR 2.62, available at the following link: COVID-19 Reporting and Testing.pdf (ny.gov)). The Commissioner of Health issued a determination on COVID19 testing pursuant to the emergency regulation on September 2, 2021 (“COH Determination”), available at the following link: 2.62-determination.pdf (ny.gov). Further, the Department of Health issued Interim Guidance for Classroom Instruction in P-12 Schools During the 2021-2022 Academic Year that addresses the implementation of COVID-19 testing for teachers and staff, available at the following link: school-guidance.pdf (ny.gov). The two types of testing are (1) Diagnostic Screening Testing (for individuals who, regardless of vaccination status, are symptomatic or are asymptomatic but have been exposed to someone with COVID-19); and (2) Mandatory Screening Testing (testing of asymptomatic employees with no exposure or symptoms). Teachers and staff who have been fully vaccinated AND provide proof of vaccination may be permitted by the employing school district to “opt-out” of the mandatory weekly testing. (See COH Determination). And, again, the impact or effects of such mandatory testing may be subject to negotiation upon demand. Locals should consult with their assigned Labor Relations Specialist.
Analysis: According to a study by the CDC, 74% of Covid cases occurred in fully vaccinated people compared with 26% of Covid cases occurring in unvaccinated people. As a result of this study the CDC advised all vaccinated people to wear masks as vaccinated people can spread the virus very easily. Therefore, it is pure unscientific discrimination to require mandatory Covid testing for unvaccinated people and not for vaccinated people. Requiring only unvaccinated people to receive Covid testing is a coercive political play, not a scientific health initiative. Ask your union leaders what they are doing to fight this discrimination?
Q: Can an employee obtain a medical or religious exemption to a COVID-19 testing requirement?
A: Likely, no. See EEOC Guidance at A.6 and response to Question #4, above. While an employee might request a medical or religious accommodation from a testing requirement from the employer, the employer may deny such accommodation and may question the medical need for such accommodation or the sincerity of any religious practice suggesting that the employee could not be tested on religious grounds.
Analysis: The "answer" provider here seems very biased. Sincere and genuine religious exemptions are perfectly legal if they do not cause undue hardship for the employer. When the employer says "Likely, no" in spite of laws that allow sincere and genuine religious exemptions it seems as though the employer has committed to a narrative or agenda that has been prearranged. Unions must represent all members, and not support a prearranged agenda that is neither true nor fair.
Q: How does an employer maintain and store COVID-19 testing results and vaccination status for its employees?
A: According to EEOC Guidance, testing data and vaccination status is considered medical information and must be kept confidential and maintained in a medical file, stored separately from the personnel file. (EEOC Guidance, B.1). Within this medical file (even if it predated COVID), an employer may store all medical information related to COVID-19. (EEOC Guidance, K.4.). While COVID-19 status is considered confidential, employers may disclose the name of the employee to a public health agency if the employer learns of a positive test. (EEOC Guidance, B.2). If an employee Page 3 of 6 tests positive, or is displaying symptoms, employers should “make every effort to limit the number of people who get to know the name of the employee.” (EEOC Guidance, B.5). The EEOC recommends using a generic descriptor when providing notice of a positive test to other employees, as to not violate the ADA’s prohibition of disclosing medical information. (EEOC Guidance, B.5). If an employee is working remotely due to contracting COVID-19, the employer may disclose that the employee is telecommuting, but not the reason why. (EEOC Guidance, B.7). The HIPAA Privacy Rule does not apply to P-12 schools and administrators because they are not covered entities under HIPAA. HIPAA applies to health plans, health care clearinghouses, and to any health care provider who transmits health information in electronic form in connection with transactions for which the Secretary of HHS has adopted standards under HIPAA. (45 CFR §160.103). Although HIPAA does not apply to the COVID-19 testing data and vaccination records, if such records are provided
Analysis: Many people want their vaccination status kept private for religious and moral reasons. What is the union doing to fight for privacy?
Q: Is antibody testing a permissible alternative to mandated weekly screening testing for P-12 school employees?
A: Likely Not. The emergency regulations provide that the Commissioner of Health “may require routine COVID-19 testing” and that such “testing determination may also include alternatives to testing . . . .” 10 NYCRR 2.62(a). The only alternative to mandatory weekly screening testing set forth in the COH Determination is for a school employee to provide proof of vaccination. See COH Determination, Section 2(a). Further, the COH Determination only considers two types of testing, nucleic acid amplification tests (NAAT) or a SARS-CoV-2 point of care antigen test (Antigen Test). Page 6 of 6 See Section 4(b). Both NAAT and Antigen tests are to detect current COVID-19 infections. The Determination makes no mention of, nor lists as an acceptable alternative, antibody or serology tests. Finally, the CDC considers antibody tests as only useful to detect whether an individual had a past infection. The CDC also does not currently recommend that antibody testing be used to determine if an individual is immune to COVID-19 following vaccination or to assess the need for vaccination in an unvaccinated person. (See CDC, Interim Guidelines for COVID-19 Antibody Testing in Clinical and Public Health Settings, available at https://www.cdc.gov/coronavirus/2019- ncov/lab/resources/antibody-tests-guidelines.html (updated March 17, 2021)). Based on the goal of the emergency regulations and directives in the COH Determination, it does not appear that either intended to allow for antibody testing as a substitute to the mandatory weekly testing requirement.
Analysis: What is the union doing to fight this on behalf of the membership? A recent study published in the well-known scientific journal ScienceDirect -Toxicology Reports shows that for every one person killed by Covid five people are killed by the vaccine. People need to analyze the risk vs. benefit of inoculation with their personal physician and NOT be forced to inoculate by their employer. A recent study out of Israel shows that natural infection by Covid provides longer lasting and stronger protection against future Covid infections than vaccination. Prior infection is as good or better than vaccination. The employer is not a medical specialist and they do not know the particular health situation of the employee. What is the union doing to fight for natural infection as a means of accepted immunity?
We are not experts, so be sure to consult a proper professional before using any of the information below.
We are not experts, so be sure to consult a proper professional before using any of the information below.
Q: Can P-12 school districts/BOCES compel employees to disclose their COVID-19 vaccination status?
A: Yes. Asking employees for proof of COVID-19 vaccination is not a disability-related inquiry and is permissible; however, asking why an employee did not get vaccinated may be a disability-related inquiry that violates the Americans with Disabilities Act (ADA). If an employee refuses to answer a question regarding vaccination status, they could be considered insubordinate. (See Equal Employment Opportunity Commission, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Section K, available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-andother-eeo-laws (last updated May 28, 2021)(EEOC Guidance)).
Analysis: Regardless of the legal rules that may allow employers to ask for proof of vaccination, many employees feel very violated being asked for this very personal and private information. In fact, some employees feel so violated that, even though they have been fully vaccinated, they choose NOT to submit proof of vaccination and instead accept mandatory Covid testing. Just because it is legal doesn't make it right. Segregation was once legal in this country, but that didn't make it right.
Q: Can an employer mandate the COVID-19 vaccine for its employees?
A: Likely, Yes. No federal law prohibits an employer from mandating that staff receive a COVID-19 vaccine. Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) may require an employer to provide reasonable accommodations due to an employee’s disability or sincerely held religious belief or practice, so long as the accommodation does not impose an undue burden on the employer. Vaccine mandates have been upheld by the U.S. Supreme Court in the past in response to a public health emergency. (Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 35 (1905)). In 1904, the New York Court of Appeals upheld as constitutional a smallpox vaccination mandate directed at school employees and students. (Viemeister v. White, 1 N.Y. 235, 238 (1904)). Although courts have not yet issued many decisions on this issue, federal courts in Texas and Indiana have upheld employer vaccine mandates and relied upon the U.S. Supreme Court’s decision in Jacobson. Some courts in New York have considered whether to temporarily restrain vaccine mandates, but those cases have not been decided on the merits of the claims. In terms of labor law, even if the employer’s decision to mandate vaccines is not negotiable, the local can demand to bargain the impact or effects of such decision. Locals should consult with their assigned Labor Relations Specialist.
Analysis: Just because it may be legal to force vaccination on employees doesn't make it right. Slavery was once legal in this country, but that didn't make it right. A recent study published in the well-known scientific journal ScienceDirect -Toxicology Reports shows that for every one person killed by Covid five people are killed by the vaccine. People need to analyze the risk vs. benefit of inoculation with their personal physician and NOT be forced to inoculate by their employer. The employer is not a medical specialist and they do not know the particular health situation of the employee. Union members must ask their union what they are doing to fight mandatory vaccination for employees.
Q: Does the employer engage in discrimination if it requires an unvaccinated individual to take COVID-19 screening tests?
A: A vaccine mandate that is neutral and of general applicability should not implicate the Free Exercise of religion clause of the Constitution, provided it has a rational basis. Requiring individuals who have not provided proof of vaccination to be tested is not discriminatory, as vaccination status is not a class protected by Title VII of the Civil Rights Act of 1964, the ADA or the New York Human Rights Law.
Analysis: According to The American Heritage Dictionary 5th Addition, the word “discrimination” is defined as "treatment or consideration based on class or category, such as race or gender, rather than individual merit; partiality or prejudice". Vaccinated and unvaccinated people are two separate "classes or categories". According to one study by the CDC, 74% of Covid cases occurred in fully vaccinated people compared with 26% of Covid cases occurring in unvaccinated people. As a result of this study the CDC advised all vaccinated people to wear masks as vaccinated people can spread the virus very easily. Therefore, it is pure unscientific discrimination to require mandatory Covid testing for unvaccinated people and not for vaccinated people. Requiring only unvaccinated people to receive Covid testing is a coercive political play, not a scientific health initiative. Ask your union leaders what they are doing to fight this discrimination?
Q: Can an employer mandate COVID-19 testing for employees?
A: Yes. The EEOC Guidance at Section A.6 notes that “the ADA requires that any mandatory medical test of employees be ‘job related and consistent with business necessity.’” The EEOC further states that “applying this standard to the current circumstances of the COVID-19 Page 2 of 6 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.” (EEOC Guidance, A.6). The New York State Department of Health issued emergency regulations pertaining to COVID19 testing in P-12 schools. (See 10 NYCRR 2.62, available at the following link: COVID-19 Reporting and Testing.pdf (ny.gov)). The Commissioner of Health issued a determination on COVID19 testing pursuant to the emergency regulation on September 2, 2021 (“COH Determination”), available at the following link: 2.62-determination.pdf (ny.gov). Further, the Department of Health issued Interim Guidance for Classroom Instruction in P-12 Schools During the 2021-2022 Academic Year that addresses the implementation of COVID-19 testing for teachers and staff, available at the following link: school-guidance.pdf (ny.gov). The two types of testing are (1) Diagnostic Screening Testing (for individuals who, regardless of vaccination status, are symptomatic or are asymptomatic but have been exposed to someone with COVID-19); and (2) Mandatory Screening Testing (testing of asymptomatic employees with no exposure or symptoms). Teachers and staff who have been fully vaccinated AND provide proof of vaccination may be permitted by the employing school district to “opt-out” of the mandatory weekly testing. (See COH Determination). And, again, the impact or effects of such mandatory testing may be subject to negotiation upon demand. Locals should consult with their assigned Labor Relations Specialist.
Analysis: According to a study by the CDC, 74% of Covid cases occurred in fully vaccinated people compared with 26% of Covid cases occurring in unvaccinated people. As a result of this study the CDC advised all vaccinated people to wear masks as vaccinated people can spread the virus very easily. Therefore, it is pure unscientific discrimination to require mandatory Covid testing for unvaccinated people and not for vaccinated people. Requiring only unvaccinated people to receive Covid testing is a coercive political play, not a scientific health initiative. Ask your union leaders what they are doing to fight this discrimination?
Q: Can an employee obtain a medical or religious exemption to a COVID-19 testing requirement?
A: Likely, no. See EEOC Guidance at A.6 and response to Question #4, above. While an employee might request a medical or religious accommodation from a testing requirement from the employer, the employer may deny such accommodation and may question the medical need for such accommodation or the sincerity of any religious practice suggesting that the employee could not be tested on religious grounds.
Analysis: The "answer" provider here seems very biased. Sincere and genuine religious exemptions are perfectly legal if they do not cause undue hardship for the employer. When the employer says "Likely, no" in spite of laws that allow sincere and genuine religious exemptions it seems as though the employer has committed to a narrative or agenda that has been prearranged. Unions must represent all members, and not support a prearranged agenda that is neither true nor fair.
Q: How does an employer maintain and store COVID-19 testing results and vaccination status for its employees?
A: According to EEOC Guidance, testing data and vaccination status is considered medical information and must be kept confidential and maintained in a medical file, stored separately from the personnel file. (EEOC Guidance, B.1). Within this medical file (even if it predated COVID), an employer may store all medical information related to COVID-19. (EEOC Guidance, K.4.). While COVID-19 status is considered confidential, employers may disclose the name of the employee to a public health agency if the employer learns of a positive test. (EEOC Guidance, B.2). If an employee Page 3 of 6 tests positive, or is displaying symptoms, employers should “make every effort to limit the number of people who get to know the name of the employee.” (EEOC Guidance, B.5). The EEOC recommends using a generic descriptor when providing notice of a positive test to other employees, as to not violate the ADA’s prohibition of disclosing medical information. (EEOC Guidance, B.5). If an employee is working remotely due to contracting COVID-19, the employer may disclose that the employee is telecommuting, but not the reason why. (EEOC Guidance, B.7). The HIPAA Privacy Rule does not apply to P-12 schools and administrators because they are not covered entities under HIPAA. HIPAA applies to health plans, health care clearinghouses, and to any health care provider who transmits health information in electronic form in connection with transactions for which the Secretary of HHS has adopted standards under HIPAA. (45 CFR §160.103). Although HIPAA does not apply to the COVID-19 testing data and vaccination records, if such records are provided
Analysis: Many people want their vaccination status kept private for religious and moral reasons. What is the union doing to fight for privacy?
Q: Is antibody testing a permissible alternative to mandated weekly screening testing for P-12 school employees?
A: Likely Not. The emergency regulations provide that the Commissioner of Health “may require routine COVID-19 testing” and that such “testing determination may also include alternatives to testing . . . .” 10 NYCRR 2.62(a). The only alternative to mandatory weekly screening testing set forth in the COH Determination is for a school employee to provide proof of vaccination. See COH Determination, Section 2(a). Further, the COH Determination only considers two types of testing, nucleic acid amplification tests (NAAT) or a SARS-CoV-2 point of care antigen test (Antigen Test). Page 6 of 6 See Section 4(b). Both NAAT and Antigen tests are to detect current COVID-19 infections. The Determination makes no mention of, nor lists as an acceptable alternative, antibody or serology tests. Finally, the CDC considers antibody tests as only useful to detect whether an individual had a past infection. The CDC also does not currently recommend that antibody testing be used to determine if an individual is immune to COVID-19 following vaccination or to assess the need for vaccination in an unvaccinated person. (See CDC, Interim Guidelines for COVID-19 Antibody Testing in Clinical and Public Health Settings, available at https://www.cdc.gov/coronavirus/2019- ncov/lab/resources/antibody-tests-guidelines.html (updated March 17, 2021)). Based on the goal of the emergency regulations and directives in the COH Determination, it does not appear that either intended to allow for antibody testing as a substitute to the mandatory weekly testing requirement.
Analysis: What is the union doing to fight this on behalf of the membership? A recent study published in the well-known scientific journal ScienceDirect -Toxicology Reports shows that for every one person killed by Covid five people are killed by the vaccine. People need to analyze the risk vs. benefit of inoculation with their personal physician and NOT be forced to inoculate by their employer. A recent study out of Israel shows that natural infection by Covid provides longer lasting and stronger protection against future Covid infections than vaccination. Prior infection is as good or better than vaccination. The employer is not a medical specialist and they do not know the particular health situation of the employee. What is the union doing to fight for natural infection as a means of accepted immunity?
We are not experts, so be sure to consult a proper professional before using any of the information below.
