Coming Soon? Districtwide COVID-19 Testing for K-12

Franczek P.C.

COVID-19 saliva tests have been used as one tool to slow the spread of coronavirus—notably on college campuses. Soon, several saliva tests will be available to K-12 schools. The availability of such tests prompts several novel legal questions from whether a public school can mandate testing to what protocols need to be in place before testing begins. This alert outlines the top issues to have on your radar if your school district is considering Districtwide COVID-19 testing.

Will the District require testing or will testing be voluntary?

A threshold question for many school districts is whether they will seek to mandate testing for staff and students, make testing voluntary, or some combination of mandatory and voluntary for different categories of students and staff. As with many issues related to COVID-19, neighboring school districts may reach different decisions based on factors unique to each. There are liability risks that each school district should weigh when making these decisions. School districts should also consider the position of the local health department, the proportion of staff and students that needs to be tested to make the program effective, the availability of funding, as well as community support or opposition.

What should the District work on now to get ready for universal testing?

Negotiate vendor agreement. School districts considering universal testing should identify a testing vendor and negotiate an agreement. Given the rapid development of testing and novel application in K-12 schools, school districts will need some lead time to ensure responsible contract terms.

Board approval. While many Boards granted administrators authority to make necessary quick decisions to facilitate reopening and pivots, the potential expenditure involved with universal testing alone requires Board action.

Funding. School districts should consider who will pay for tests, including the cost of follow-up viral testing. If parents are required to pay for testing, consider the need for financial assistance.

Testing protocols. Although the testing process will be dictated by the specific test, the District will need protocols to guide exclusion decisions, hearing processes, and religious exemption processes.

What additional issues will impact a school district’s decision on universal testing? 

There are several interrelated considerations that will impact a school district’s decision. One consideration is funding. Whether paid for by school district funds or required of individuals, the cost-benefit analysis is complex and best done with research in hand. Another factor is the comparability of the remote opportunity and the District’s in-person opportunity. Lastly, school districts must maintain compliance with other COVID-19 safety requirements and must avoid any relaxation of vigilance based on a sense of safety from testing alone.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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