School Districts Must Take Efforts to Insist That Contractors Are Complying With New York State Department of Health Testing Obligations

On September 2, 2021, the New York State Department of Health issued a directive indicating all faculty, staff, or contractors working in a P-12 school—whether public or non-public—must submit proof of vaccination against COVID-19 or submit proof of a negative COVID-19 test result on a weekly basis. See, https://coronavirus.health.ny.gov/system/files/documents/2021/09/2.62-determination.pdf. The directive defined those to whom it applies as follows: “faculty or staff, including all teachers, substitute teachers, student teachers, school administrators, paraprofessional staff, and support staff, including bus drivers. This determination also applies to contractors working in a P-12 school (public or non-public) or School District setting, including contracted bus drivers.”

Interpreting the Application of the Directive

The purpose of the DOH directive is to slow the spread of COVID-19 in the School District setting. As such, in the implementation of the DOH directive, it should be interpreted broadly. We recommend School Districts require compliance from any company working under a contact in a School District facility. To assist in the implementation of the directive, we have drafted below a non-exhaustive list of potential contractors which Districts demand a certification of compliance.

Category of District Interaction Examples of Contractors Athletics Athletic Officials, Coaches, Scorekeepers, Transportation Providers Board Appointed Professionals Attorneys, Fiscal Advisors, School Architect, School Physician Construction Construction Manager, Prime Contractors, Subcontractors, Inspectors Professional Development Consultants, Guest Speakers being paid under contract. Service Providers Copy machine maintenance, Mechanical Maintenance, SROs Special Education BOCES staff members, Itinerant staff members Vendors Supply delivery (milk, coffee, water coolers, paper, etc.)

Implementation of the Directive

We recommend that the District contact each company and require an officer or director sign a certification of compliance that all of the company’s employees (inclusive of all subcontractors) are either vaccinated or are being tested on a weekly basis. The company is responsible for securing the data from employees and maintaining written documentation demonstrating proof of compliance for a period of six (6) years. You should require that the company agree to produce the records upon request to the School District/BOCES or the New York State Department of Health.

The Documentation Which the Contractor Must Maintain in its Records are:

• Proof of Vaccination. For all vaccinated employees, the company must maintain written certification as evidence of vaccination for each employee in one of the three following forms: (1) an original vaccination card for inspection, (2) a signed doctor’ s note indicating full vaccination, or (3) copy of an Excelsior pass.
• Proof of Weekly Testing. For all unvaccinated employees, evidence of completion of weekly testing with a negative test result showing date of test and negative results by a testing entity, or a medical provider’s note per test result obtained.

Capital Construction Contractor Claims

We have received some claims for additional compensation for compliance with the vaccination/testing requirements filed against school district clients. These claims should be sent to our office for review under the General Conditions of the Construction contract as in many instances the contractors are not entitled to additional compensation under these agreements.

If you have any questions or need assistance enforcing compliance, please call our office.