On February 16th, the New York State Education Department (NYSED) issued guidance (NYSED Guidance) establishing a new rule that public schools in New York cannot require students to consent to COVID-19 testing in order to attend in-person classes. The guidance from Assistant Commissioner Kathleen DeCataldo states that “parent/guardian consent for COVID-19 testing of students may not be a condition of in-person learning or other school activities.” “Other school activities” includes student sports.
This is a new position and one that conflicts with the policy of the New York City Department of Education (NYC DOE), which requires parents to sign a consent form agreeing to COVID-19 testing in order for their children to be eligible to attend in-person classes. Charter schools are not bound by the NYC DOE rule, but some charter schools have adopted a similar policy. Any charter school that has created such a policy should review and revise it; any school that is currently requiring all students to consent to be tested for COVID-19 in order to attend in-person instruction should stop this practice, and/or consult your attorney.
It is important to note that this new restriction does not forbid testing of a sampling of students as part the Governor’s Cluster Action Initiative and in accordance with New York State Department of Health guidance in neighborhoods with heighted COVID-19 infection rates. If a school is in a designated yellow, orange or red “micro cluster zone,” students should still be included in the percentage of individuals who are tested for COVID-19. Students who refuse to participate in such testing should not be excluded from in-person instruction on that basis. Further, according to the NYSED Guidance schools are still permitted to exclude students if they “are ill or symptomatic, or if a local health department has otherwise ordered students to quarantine based upon actual or potential exposure to COVID-19. Thus, districts may not exclude healthy or asymptomatic students; students who are participating in a sport; or students whose parent/guardian does not give consent for COVID-19 testing.” This rule explicitly applies to charter schools too.
This NYSED Guidance is very new; it is possible that there will be further clarifications or differing positions taken by other authorities, such as the New York State Department of Health or the courts. We will keep you updated. Also, please look for a podcast from us on COVID-19 testing and vaccination issues that we will post and circulate within the next few days. If you have any questions in the meantime, you can contact Paul O’Neill, Jaime Fernand, or Lisa Holtzmuller by email or by phone at (212) 792-6246.