HSTA FAQs on governor’s vaccine, testing emergency proclamation

The union addresses questions and concerns about HIDOE’s implementation

On Aug. 5, Gov. David Ige announced he was using his emergency powers to require state and county employees to show proof of COVID-19 vaccination or submit regular test results. The Hawaii State Teachers Association, along with other public sector unions, demanded bargaining regarding the impacts to employees over the proclamation’s implementation.

On Aug. 18, the Hawaii State Department of Education (HIDOE) invited public sector unions to meet and discuss questions and concerns. A few hours after that meeting, during which the HIDOE could not provide answers to serious concerns from unions, the department emailed all employees notifying them of a one-week delay for implementation until Monday, Aug. 30.

On Sept. 3, HSTA filed two class grievances over unsafe working conditions during the pandemic and the state’s directive that unvaccinated education employees must be tested for COVID-19 weekly. Class grievances represent all teachers who have been wronged by action or inaction on the part of the employer.

General questions

Does the governor have the legal right to require employees to report their vaccination status or be tested for COVID-19?2021-08-19T12:30:38-10:00

Yes. The governor used his legal authority through an emergency proclamation to require that all state, city, and county employees attest to whether they are fully vaccinated, partially vaccinated, or not vaccinated for COVID-19. It further provides that as an “alternative,” state and county employees shall be subject to regular COVID-19 testing that shall occur either once or twice per week, at the discretion of the relevant state or county department, office, or agency.

Doesn’t the state have to negotiate the implementation of this new mandate?2021-08-19T12:32:05-10:00

The governor suspended portions of Chapter 89 (Hawaii’s collective bargaining law) in his emergency proclamation. This action suspended both the right to negotiate and the right to file a prohibited practice complaint. Suspending portions of the collective bargaining law means that the unions will have a difficult time challenging any failure to bargain at the Hawaii Labor Relations Board. We are looking at other options to protect our right to negotiate the impacts of the mandate.

What is HSTA’s position on the governor’s emergency proclamation?2021-08-19T12:33:12-10:00

HSTA joins Hawaii’s other five public sector unions in our belief that everyone who is eligible for vaccination should get vaccinated and absent vaccination, they should be regularly tested through a process that has been negotiated and not unilaterally implemented. The public sector unions transmitted a joint letter to the governor demanding bargaining on the new mandate.

Does HSTA provide attorneys for individual consultation regarding those who are unvaccinated?2021-08-19T12:33:50-10:00

As the exclusive representative for Bargaining Unit 05 employees, the HSTA retains attorneys for various collective bargaining matters that affect members, such as issues before the Hawaii Labor Relations Board. However, we do not have practicing attorneys on staff nor do we provide attorneys to teachers for individual consultation. Members should contact their UniServ Director if they have additional questions.

HIDOE’s implementation of mandate

The following information is specific to the implementation of the governor’s mandate by the HIDOE.

Note for public charter school employees: Each charter school is responsible for complying with the governor’s mandate. Charter schools may implement the mandate differently from the HIDOE procedures described below. If members have questions or concerns regarding their school’s implementation, they should contact their UniServ Director.

Will the HIDOE release a list of testing sites at schools?2021-09-24T10:06:43-10:00

No. The department is not planning to publish any list of HIDOE testing sites. Instead, they are directing everyone to the DOH website for community sites and administration for any school-based testing available in their area. Approximately 150 schools have requested on-site testing. Access for other non-worksite-associated HIDOE employees is up to the administrator’s discretion.

When do I have to turn in proof of vaccination or a negative COVID-19 test result?2021-09-13T19:17:15-10:00

Employees need to upload verification of vaccination or their negative results at least once every seven (7) days (weekly) using the date the negative test was taken.

I am approved to telework. Do I still have to comply with the mandate?2021-08-19T19:23:51-10:00

Yes. All state, city, and county employees not on leave must comply.

What should I do if I get an email that says I need to submit a COVID-19 test showing I am negative before I can return to work?2021-09-13T19:25:45-10:00

Speak with your supervisor for further guidance. It is our understanding that if you failed to upload your attestation to the eHR system (i.e., vaccination status and/or test results), emails were autogenerated.

I am recovering from COVID-19 and have been cleared by my doctor to return to work. Do I still need to test?2021-08-19T12:42:17-10:00

HSTA confirmed with the HIDOE that employees who have contracted COVID-19 and have been cleared to return to work are exempt from testing for 90 days. The requirements include no new symptoms, completion of isolation and quarantine period, and an upload of written documentation from a licensed health care provider or a letter from the State of Hawaii Department of Health stating the date of infection and that they have been released from isolation or quarantine. The documents can be uploaded in the same section of eHR that negative test results are uploaded. After the 90-day period, the employee will need to submit to weekly testing unless they have uploaded proof of vaccination.

Do I have the legal right to refuse to get vaccinated?2021-08-19T13:17:48-10:00

There are two legally recognized reasons employees may cite to receive an exemption to any mandate for vaccination: those with disability-related (medical) reasons or who have a sincerely held religious belief.

However, the state’s position is they are not implementing a vaccine mandate, but rather a testing mandate. See further details in the following question.

The governor allowed for religious and medical exemptions to the mandate in the proclamation and gave the employers some latitude in how they implement the emergency proclamation. However, the exemption does not give the employee the right to refuse to submit to regular testing for COVID-19.

The HIDOE has chosen to simplify the implementation process. The HIDOE is implementing a testing mandate, exempting vaccinated employees from testing. This simplified process is not asking employees to submit exemption forms since all unvaccinated employees will have to test unless they are approved for a religious or medical exemption through an accommodation request. See further details in the following question.

I am unvaccinated and I don’t want to submit to weekly testing. Do I have the right to refuse a test? Can I get an exemption from testing?2021-09-16T09:09:25-10:00

Unvaccinated employees will need to comply with the testing mandate or risk discipline for insubordination. The employer has the legal right to employ such practices to ensure and protect the health and safety of those in the workplace by requiring employees to test for COVID-19.

The HIDOE has informed HSTA that employees with disability-related (medical) reasons or who have a sincerely held religious belief against COVID-19 testing may seek accommodation via the HIODE reasonable accommodation request process by filling out and submitting a Form RA-1 or Form RA-3 from the HIDOE Civil Rights Compliance Branch. For further inquiries, you can reach them by phone at (808) 586-3322 or email CRCB@k12.hi.us.

I am unvaccinated and concerned that I may not be able to get a free test. Will I be reimbursed if I pay for one?2021-08-19T12:47:12-10:00

The HSTA believes the mandated testing should come at no cost to state employees. HSTA’s position is supported by School Code Regulation #5100 (p. 39 of 547), which is incorporated into the contract and by reference under Article XXV: Maintenance of Benefits, cites the following:

“An employee in the Department may be required at the discretion of the Department to have a medical examination, and if so directed, this examination will be done at the expense of the Department.”

However, the HIDOE has taken the position that COVID-19 testing is not the same as medical examinations and refuses to pay for or reimburse any testing costs.

Thus, employees should seek free testing. If they cannot find a free test, they should immediately notify their supervisor and ask for guidance. If they are directed to seek a test that costs money, they should comply and ask the supervisor to pay for the cost and/or request the employer reimburse the cost. Document all communication and save any receipts from the costs.

Because of the HIDOE’s position on this topic, the HSTA can pursue a grievance on behalf of any teacher who is forced to pay for the cost of the testing. Teachers affected by this situation should immediately contact their UniServ Director for further instructions.

Separately, public sector union trustees of the Hawaii Employer-Union Health Benefits Trust Fund (EUTF) have added to their agenda for Aug. 24, “Coverage of COVID-19 Tests” seeking financial coverage for employer-mandated testing for those on EUTF-sponsored health plans.

I am unvaccinated. Can’t there be an option to get tested at school or during work hours? This is a hardship for those employees who live in remote areas with few to no testing options.2021-08-19T12:48:38-10:00

The HSTA agrees that testing options should be easily accessible and during paid work time. HSTA’s position is supported by School Code Procedure #5100.2 (p. 43 of 547), which is incorporated into the contract under Article XXV: Maintenance of Benefits, and indicates that in cases of directed medical examination, short-term leave with pay and substitute teachers when required can be provided if necessary.

However, the HIDOE has taken the position that COVID-19 testing is not the same as medical examinations and is not planning to provide any paid time to seek testing.

We have requested the employer seek out ways to have testing at or near each worksite. We have been advised the HIDOE is actively working with DOH on securing more free testing options on or near school campuses.

We also advise members to request their supervisor provide paid time to get tested, which would include providing a substitute if necessary. If the administration directs a teacher to seek testing outside of work hours, the teacher should comply and document the directive and related communication. Please ask your principal or administrator to make their request to you in an email. If they refuse to do so or only provide verbal instructions, please email your supervisor to confirm their directive and provide a paper trail.

Because of the HIDOE’s position on this topic, the HSTA can pursue a grievance on behalf of any teacher who is forced to seek testing outside of paid work time. Teachers affected by this situation should immediately contact their UniServ Director for further instructions.

Can sick or personal leave be used to get tested?2021-09-13T19:21:57-10:00

The HIDOE has not explicitly committed to an answer on this one. Teachers have a contractual right to five (5) days of sick leave before needing a note on the sixth day. They can also request personal leave per procedure. Please also refer to the question about testing during work hours.

What type of test is accepted to show proof of testing negative for COVID-19?2021-09-24T10:02:43-10:00

The HIDOE COVID-19 Test Results Reporting Instructions (page 10) indicates the following types of tests are approved: “Only Food and Drug Administration (FDA) emergency use authorized antigen or nucleic acid amplification testing completed by a CLIA certified laboratory or testing site will be accepted.” The HIDOE is awaiting state Department of Human Resources Development (DHRD) to publish a list of all approved tests for state employees needing it for attestation purposes. The HIDOE is also awaiting DOH response to request confirmation of a “reliable and valid” saliva test that can be used for attestation.

What if I can’t secure a test or my results are delayed due to the high demand for testing?2021-09-24T10:09:21-10:00

If a teacher is unable to secure testing or results are delayed we advise them to contact their supervisor and ask for guidance, such communication will help to mitigate any possible disciplinary action. Document the guidance provided and contact their UniServ Director if they need further assistance.

In addition, any employee who is not able to upload confirmation of a negative test by the deadline will not be allowed to work. Their supervisor will send the employee home. In order to remain on a paid status, the employee will need to utilize the HIDOE leave procedures, fill out leave paperwork and be approved to take leave from their individual sick leave bank (or vacation for 12-month employees).

If they fail to request paid leave, the principal must place the employee on unauthorized or authorized leave without pay (LWOP). Unauthorized leave is generally for those refusing to comply with the directive to submit a test; if a test is late, the admin should be using authorized LWOP.

What type of action could the employer take against me if I refuse to test? Who would carry out the discipline?2021-08-19T12:51:14-10:00

Unvaccinated employees who refuse to be tested risk disciplinary action up to and including termination. An employee’s immediate supervisor would generally be the person who has the responsibility to enforce this mandate and begin the process for any discipline to those who refuse to comply.

When the unions met with the HIDOE on Aug. 18, we were informed that any employees who refuse to comply with the mandate will be considered insubordinate. The employer will treat the refusal as egregious behavior and start termination procedures.

Regardless, all employees have the right to due process and HSTA representation, so documentation of any circumstances that affect the ability to comply with the mandate will be important. Any teacher facing disciplinary action is advised to contact HSTA for assistance.

I am unvaccinated and I don’t want to submit to weekly testing. Could I take a leave of absence?2021-08-19T12:51:40-10:00

It is possible to take a leave of absence, but all leaves must be in compliance with existing leave procedures. In order to remain on a paid status, the employee will need to utilize the HIDOE leave procedures, fill out leave paperwork and be approved to take leave from their individual sick leave bank (or vacation for 12-month employees).

Why is it that only the unvaccinated population is being mandated to test?2021-08-19T12:52:20-10:00

The current guidance from the U.S. Centers for Disease Control and Prevention (CDC) states that fully vaccinated people with no COVID-19-like symptoms and no known exposure should be exempt from routine screening testing programs.

How is the employer ensuring that the personal medical information employees upload to eHR is secure and who has access to employees’ vaccine or testing status?2021-08-19T12:52:43-10:00

The HSTA has confirmed that the section of the eHR web platform being used to collect vaccination and COVID-19 testing information is separate from other personnel records. Access to these files is limited to individuals who would need to help verify compliance, such as the immediate supervisor, complex area superintendent (CAS), and their designees, e.g., school SASAs.

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