Refusing NYC In-School COVID Testing or Consenting With a Contingency

12-4-2020

Overall these forms are being rejected by the NYC DOE. That is why we are filing a lawsuit as early as Friday, December 11, 2020. Learn more about that lawsuit HERE.

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Below we offer two options for resisting ‘mandatory’ COVID testing in NYC schools for both staff and students (parents):

(1) Signing your consent with a contingency

(2) Refusing with a refusal letter.

It appears an update has been posted by the New York City Education Department (NYCED) stating that NYC teachers will have one week from when they return to their buildings to sign the consent form for in-school COVID testing, and NYC students will have one day. We will be posting an in-depth update on the new NYCED guidelines for NYC’s in-school testing program over the weekend. (correction – I previously wrote NYSED, that was incorect. It is NYCED. Get a summary of that update HERE)

Things are changing rapidly. Please check back to our website regularly to see if we have changed or updated any of these letters. The contingency is unlikely to change, however the Refusal Letter could have slight changes to it as more information is made public from NYC DOE. If at any point in time you receive any form of discipline or ‘harm’ of any sort for refusing in-school COVID testing, or consenting with contingency, please contact us immediately and we will put you directly in touch with one of our attorneys. Both of these letters were reviewed and edited by two of our attorneys: Michael Sussman and Mary Holland.

(1) CONSENTING w/ CONTINGENCY:

You need to sign and date this document titled “Attachment 1 to NYC DOE Consent Form for COVID-19 Testing” but also sign the actual DOE consent form. When you sign the DOE consent, you must put a BIG STAR next to your signature saying “contingent upon the conditions in Attachment 1” and give both the DOE consent and Attachment 1 to your supervisor.

Download Attachment 1 as pdf document:

Attachment 1 to NYC DOE Consent Form for COVID-19 Testing

I consent to in-school COVID testing subject to the following conditions:

1. I receive a manufacturer’s package insert for the test being used in advance to ensure my fully informed consent;

2. NYC Health and Hospitals Corp. has released its Specimen Collection Agreement with Fulgent Genetics for my attorneys’ and my review. I require documentation to prove NYC Department of Education’s public assurances made to attorney Michael Sussman via email on October 30, 2020, and subsequently published on the NYC DOE website, that my genetic sample will not be sold or used for any purpose whatsoever, and my specimen will only be used to provide the Department of Education and me information regarding my COVID test status.*

Without these two conditions being met – conditions required to meet minimum legal standards for prior, free and informed consent – I do not consent.

* NYC DOE has assured teachers that the laboratories they work with will not use my specimen for anything other than COVID testing. However, NYC H+H has not released the governing document that would provide the evidence to prove, or disprove, these assurances. When attorney Michael Sussman asked NYC DOE General Counsel Chief of Staff Henry Bluestone Smith to provide this document, Mr. Smith replied that the DOE does not possess it, only NYC H+H does. A freedom of information request filed with NYC H+H to release this document has already expired without NYC H+H’s compliance. 

Signature

Name

Date

_______________

(2) REFUSAL LETTER

We published a letter of refusal at our website back on October 20, 2020, then updated it on November 11, 2020. Today we publish a third revised version of it that you can use if you feel pressure or coercion from your principal or supervisor. However there is still the question of whether or not after 1 week of refusing if you will be placed on unpaid leave. The contingency included above may be a way around that issue.

Download Refusal Letter Update #3 as a pdf document:

Refusing In-School COVID Testing 

December 4, 2020 Letter

Update #3

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 NYC DOE’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. On December 4th NYSED posted that there are exemptions for staff members but the link to explain those exemptions was not functional.

“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

NYC DOE has assured teachers in writing to attorney Michael Sussman on October 30, 2020, that the laboratories they work with will not use my specimen for anything other than COVID testing. A few days after this written assurance, the DOE published the assurance on their website. However, NYC H+H has not released the Specimen Collection Agreement between them and Fulgent Genetics, which is the governing document that would provide the evidence to prove, or disprove, these assurances. When attorney Michael Sussman asked NYC DOE General Counsel Chief of Staff Henry Bluestone Smith to provide this document, Mr. Smith replied that DOE does not possess it, only NYC H+H does. A freedom of information request filed with NYC H+H to release this document has already expired without NYC H+H’s compliance.

Signature

Name

Date