Refusing NYC In-School COVID Testing

A legally reviewed letter of refusal

10-20-2020 (Updated 11-11-2020)

Update — WE SUED THE NYC DOE AND WON! Learn about this victory HERE – https://nyteachersforchoice.wordpress.com/2020/12/28/kane-vs-nyc-doe-has-been-settled/

To have the opportunity to give informed consent to a medical procedure or test you must be able to ask questions and, if such questions are reasonable, receive answers to those questions. That has not happened for NYC Teachers being asked to consent to in-school COVID testing. Therefore any teacher that does not want to consent to this medical test is within their rights to refuse it.

NYCDOE has threatened to place teachers on unpaid leave if they do not comply, and this may happen. However, to date, we have heard of not one teacher being placed on unpaid leave for not signing the consent form or refusing an in-school COVID test. We did hear of one teacher being placed on unpaid leave for 1 day, but then that teacher submitted a negative test result from a COVID test from the teacher’s own personal doctor and was removed from unpaid leave immediately. Besides this one situation, anyone who has not signed the consent – that we are aware of – has not been selected to be tested for in-school COVID testing. This does not mean it hasn’t happened, it just means we have not heard of this happening in any of the 5 boroughs. If anyone has had a different experience, please contact us.

Some teachers have been harassed by administration to sign the consent. If you feel you are being forced or pressured into signing a consent form for in-person COVID testing that you do NOT want to consent to, we offer the following letter of refusal.

The below letter was read and edited by Harvard-trained civil rights attorney Michael Sussman, who has also sent a legal letter to the NYC Schools Chancellor Richard Carranza and UFT President Michael Mulgrew on behalf of New York Teachers For Choice. If you agree with this letter you can print it out, sign it, and submit it to anyone pressuring you to consent to in-school COVID testing. We make no promises that this letter will stop you from being placed on unpaid leave, but as stated earlier of the dozens of teachers we know in dozens of different NYC schools to date none have been placed on such leave. If you use our letter below please contact us and let us know how it works out for you.

Download pdf copy of the letter:

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I am unable to sign the consent form from the NYC DOE for mandatory in-school COVID testing because, as it stands today, I have not been given sufficient information to exercise informed consent as to what I am agreeing to. Furthermore, I object to the fact that there are zero options for reasonable accommodations especially considering that I am being asked to consent to a medical procedure, performed outside of a medical setting, by a non-medical professional referred to as a “trained individual.”

Informed Consent

The company NYC contracted for testing, Fulgent Genetics, owns a proprietary reference library of genetic information. I, and dozens of NYC teachers, have asked the NYCDOE, the UFT, and Mayor De Blasio if, by consenting to this test, we would also be consenting to Fulgent’s cataloguing our DNA in the company’s genetic library. Recently we received an “assurance” from NYCDOE’s general counsel that specimens are not used for anything but COVID testing. However, we have received no legal contractual documentation supporting this assurance. If Fulgent will be cataloguing my DNA in their for-profit library, I view this as an unwarranted use of my genetic information, an invasion of my privacy rights and an impermissible exploitation by that company for its own profit. To date, no one has explicated the terms of the contract or definitively assured me that the noted privacy concerns are unwarranted.

Reasonable Accommodation

There has been no acceptable rationale provided as to why I cannot be tested for COVID by a medical professional of my choice to meet the testing criteria of the NYCDOE. By giving no option of reasonable accommodation, you assume that there is no physical, emotional or mental health reason that would prevent me from being able to subject myself to said test at my workplace, in a non-medical setting, with perfect strangers I have never met.

“Trained Individual”

We have been told the in-school COVID testing will be performed by a “trained individual.” There has been no explanation or description of just precisely what or who a “trained individual” is or isn’t. It seems obvious this person will not be a doctor, nurse, or a medical professional. The lack of transparency on this issue, when combined with the questionable security of my DNA, has created an environment where there is little-to-no trust in a situation that requires the utmost trust to enable me to provide my consent.

Conclusion

On October 19, 2020, attorney Michael Sussman submitted a letter to Chancellor Carranza on behalf of NY Teachers for Choice which offered suggestions of how to solve this current issue in an amicable way that is acceptable and fair for all parties involved. I await to hear more guidance in regard to that communication before I make any further decisions on this matter.

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