On Wednesday, August 25, 2021, the Connecticut State Department of Education (SDE) issued “Frequently Asked Questions Regarding Vaccinations for Covered Workers in Schools.”  This guidance from the SDE addresses Governor Ned Lamont’s August 19, 2021 Executive Order 13D, which appeared to be straightforward in requiring that by September 27, 2021, all Connecticut school staff must be vaccinated (subject to disability and religious exemptions), and if not vaccinated, such staff must submit to (and provide proof of) weekly COVID-19 testing.  On its face, the Executive Order made this testing option available only to those who 1) qualified for these disability and religious exemptions, or 2) under certain circumstances, had received the first dose of a two-dose vaccine but had not received the second dose and thus were not yet FULLY vaccinated. 

In its latest FAQ guidance, the SDE stated that the weekly COVID-19 testing option is available regardless of whether an employee (or contractor) has a valid exemption to the vaccination requirement. To this end, the SDE FAQ offered the following:

The weekly testing option applies to covered workers with medical or religious exemptions, covered workers who have received only the first dose of a two-dose vaccine or for whom the required time period has not elapsed to be considered fully vaccinated, and covered workers who refuse to receive a COVID-19 vaccination. In other words, covered workers need not have a medical or religious exemption in order to avail themselves of the weekly testing option.

(Emphasis added). 

This FAQ guidance raises a number of questions including whether the FAQ is contrary to the language contained in the actual Executive Order.  For example in the FAQ, the SDE stated that schools cannot “employ” any “covered worker,” unless such worker is: “(1) fully vaccinated against COVID-19; (2) has received the first dose, and has either received a second dose or has an appointment for the second dose in a two-dose series vaccination, or has received a single-dose vaccine; or (3) is exempt from this requirement due to a medical or religious exemption.”  It seems inconsistent to say on one hand that one cannot employ someone unless they are (or in the process of being) fully vaccinated or qualify an exemption, but on other hand that someone can still test (and remain employed) even though they do not meet these previously stated conditions.  Since anyone can avoid the vaccination requirement by simply submitting to weekly COVID-19 testing, it is unclear what is the purpose is of even having a medical or religious exemption.      

Notwithstanding the above, there are some other interesting nuggets in the FAQ. 

1. EMPLOYEEs (NOT EMPLOYERs) RESPONSIBILITY FOR TESTING: The FAQ pronounced that the Executive Order does not explicitly require schools to provide or arrange for such testing to its employees. The FAQ restated the requirement that those employees who had not demonstrated proof of full vaccination would be required to submit to COVID-19 testing weekly on an ongoing basis until fully vaccinated and to provide adequate proof of the test results on a weekly basis to the schools.  However, the FAQ then noted that schools “are not … prohibited from arranging for the weekly testing described in the Order.”  It is suspected that unions might pick up on this and, after making a request to bargain the impact of the vaccine mandate, demand the schools to so arrange (or reimburse) for such testing.  If you receive from any unions a demand to bargain the impact of the vaccine mandate, immediately contact legal counsel.  At this time, I will not get into the specifics as to whether and to what extent such bargaining may or may not even be necessarily required.
2. EMPLOYEE DISCIPLINE: The FAQ noted that if a covered worker refuses to receive weekly testing, that worker must not be allowed on school premises, and that “any further consequences for a covered worker’s refusal to receive weekly testing are to be determined by the school board, to the extent permissible by law and any collective bargaining agreements, etc.”  While the Executive Order had indicated that such person could not even be employed by a school, the FAQ reminds us that a decision to discipline or terminate will be still subject to those rights that employees may have under any collective bargaining agreements/contracts or laws, such as the Teacher Tenure Act (and its termination process) that is available for public school teachers.  Thus, if you have an employee who simply refuses to test, decisions regarding that employee will still be subject to the usual applicable disciplinary/termination procedures.  I will not even mention issues with disciplining employees who did not refuse per se to test, but (mistakenly or otherwise) failed to comply with the obligation to submit timely and adequate proof of the testing results.  None of this will be cheap or fun for schools.           

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