[co-author: Jessica Simonetti]

On Monday, February 22, 2021, Governor Cuomo issued Executive Order 202.95 requiring the following:

1. Teachers employed in P-12 (public and non-public) schools must report that they have received a COVID-19 vaccination to their employing school District upon request of the District for purposes of reporting to the Department of Health.
2. Commencing Wednesday February 24, 2021 and every Friday thereafter, every school and school district shall report to the Department of Health, on a weekly basis, in a form and manner to be determined by the Department, the number of completed COVID-19 vaccinations reported in the prior week, as well as the number and percentage of teachers instructing students in-person during the prior week. Such weekly report shall include any other data elements the Commissioner of Health determines to be appropriate to track in-person instruction in such schools and school districts.

First, we urge you not to panic. As with many previous mandates imposed by Executive Order over the course of the past year, this Order was issued with an almost immediate compliance deadline but without specific guidance on the scope of the Order, format for reporting, or appropriate time to gather relevant information. As explained more fully below, we advise that you take no action to survey your employees until more clear information becomes available.

Informal guidance we have received from the State suggests the following:

1. Reporting will occur in a format similar to that of the COVID report card – but will need to be updated on a weekly, not daily, basis.
2. The reporting requirements for vaccinations, at least at this time, will be limited to classroom teachers.
3. The Department of Health will be issuing updated guidance “soon” and the terms set forth in the Executive Order, e.g.,” teachers”, “completed COVID-19 vaccinations”, will be clearly defined in the reporting questions to which school districts must respond.

While school districts and other independent and private schools should begin to develop a methodology to obtain this information on a weekly basis, we do not recommend actually requesting such information until the parameters are more clearly defined. When such clarification is issued, your survey instruments should mirror the language of the guidance or reporting questions to the extent possible.

We know some districts and schools are concerned about the fact that the reporting requirement begins tomorrow, Wednesday, 2/24/2021. Should the reporting database actually go live tomorrow, you can simply report that no individuals have reported “completed COVID-19 vaccinations.” In short order, you will be able to update the information based on survey responses you receive from teachers.

We have received a number of questions as to whether it is lawful for employers to request this information of employees. The short answer is “yes.” The EEOC guidance on this issue states the following:

There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

Finally, while this will undoubtedly cause concern among your staff, the Executive Order is clear that there is no State requirement for teachers to be vaccinated.