The Department of Health (DOH) and the Public Health and Health Planning Council (PHHPC) issued another emergency regulation this week to respond to the increasing circulation of the COVID-19 Delta variant. The emergency regulation authorizes the commissioner of health to issue determinations requiring the implementation of routine COVID-19 testing in certain settings, which may include schools, homeless shelters, nursing homes and health care settings. Entities subject to routine COVID-19 testing pursuant to the commissioner’s determination may accept documentation demonstrating full vaccination in lieu of imposing such testing requirements, if permitted in the commissioner’s determination. The testing determination issued by the commissioner may also include alternatives to testing as well as prevention protocols pending test results based on symptoms and/or exposure in certain settings.

The emergency regulation also permits the department to require reporting of testing and positive reports. Entities subject to the commissioner’s determination that fail to follow the requirements of the determination are subject to a maximum fine of $1,000 for each violation.

The commissioner issued the first determination under this regulation shortly after it was adopted on September 2, requiring COVID-19 testing in all P–12 schools. The determination requires P–12 schools to test teachers and staff at least once per week when a school is in a geographic area identified by the Centers for Disease Control and Prevention (CDC) as having low, moderate, substantial or high transmission rates. Teachers and staff may be permitted to opt out of mandatory weekly screening testing if they provide documentation of being fully vaccinated against COVID-19. P–12 schools are also required to offer screening testing to unvaccinated students on a weekly basis in geographic areas identified by the CDC as having moderate, substantial or high transmission rates. Lastly, the determination establishes criteria for all students, teachers and staff returning to school following an exclusion due to COVID-19.