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NY State Education Dept. Issues New Guidance on Mandatory Covid Testing


New York City middle schools are set to open next week and indoor dining has already opened. And that’s raising questions about how both schools and employers are allowed to handle COVID testing and vaccination. This week a waitress was fired for not agreeing to be vaccinated. And, new guidance from the state said schools cannot require consent to covid testing in order for students to attend in-person which contradicts city policy. the State Department of Education walked its guidance back. I asked Employment and Education Lawyer Bill Lalor if the state or the city has the legal right to mandate the COVID-19 test for students.

ZHAO: From a legal point of view, uh, does the city have any legal standing for mandatory testing?

BILL LALOR: It's not mandatory. It's coercive. First of all, it's the backdrop is that, you know, no tests had ever happened without, without consent. Um, the question is whether the schools can condition attendance at the schools, uh, upon giving the consent. I think it's an untested proposition, whether the city can properly, um, coerced, um, a student to, to take the test as in order to allow the students to return to the building.

ZHAO: Does the State have the jurisdiction to potentially overrule this?

LALOR:I mean, that's, that's an interesting question. Um, you know, if, if push came to shove and the New York and New York city schools were to Sue the state, um, to get clarity over which set of guidelines, um, you know, whether this is the state, um, State parameters versus the city parameters should prevail.Candidly, I don't know the answer to that question.

ZHAO: So what about students with disabilities? Will they be subjected to the same regulations?

LALOR: You know, that gets right to the heart. Of, um, of these issues, right?

LALOR: You know, we saw with the vaccine recently with the waitress at the red hook Tavern, um, you know, the situations like that, And the exceptions to the rule are often the, the situations that, um, get to court and create, um, murky situations for, um, uh, in terms of the guidance

LALOR: So the story about the waitress, um, really gets to the heart of. These cross-currents new Yorkers are experiencing with respect to the vaccine. you know, small business owners, especially restaurants have a keen interest in reopening and bringing customers back and employees want to get back to work.

LALOR: And so everybody's looking to find the right balance. Yep. From an employment perspective, um, the law and guidance, both for employers, employees are not models of clarity. Um, there was a lot of, there was much a way to EEOC guidance in December. It says employers can, uh, generally can mandate as a condition of employees being at work that the employee gets vaccinated.

LALOR: This is obviously a big issue for a small business owner, you know, including, uh, especially something like a bar or a restaurant. On the other hand, there's, uh, the laws and regulations, um, Are a bit of a patchwork and they recognize that employees, um, may have good faith reasons not to want the vaccine.

LALOR: So a lot of people are familiar with some of these issues in the context of new York's religious exemption, um, and it being eliminated. Um, but. Safety concerns are generally considered legitimate concerns and need to be recognized. Um, these concerns can be resolved often with accommodation. Someone works from home for instance, but obviously that doesn't always work.

LALOR: I think as things developed, I think employers. Um, thinking about mandatory vaccines for employees willing we'll end up encouraging, but not requiring vaccines.

ZHAO: So our teachers considered employees in the same way as restaurant workers?.

LALOR: That's a good point. I don't know the answer to that. I mean, I, I think that, there would be. A much stronger argument for, uh, the employer being the schools to mandate vaccines.

ZHAO: All right. Thank you so much, bill.


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