HIDOE should be responsible for time and expenses
The HIDOE is encouraging those who opt to submit weekly test results to use free test sites in the community. Otherwise, according to the memo, testing will be “at the employee’s expense and during non-work hours.” However, the HSTA believes the state’s limited availability and access to free COVID-19 tests will unfairly penalize those who live in rural or remote areas.
HSTA believes the department and public charter schools should responsible for the cost of COVID-19 tests, time to get tested, and other costs under School Code Regulation #5100 (p. 39 of 547):
EMPLOYMENT
B. Medical Examination Required
2. 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.
The Americans with Disabilities Act (ADA) prohibits an employer from requiring medical examinations of employees, except under limited circumstances. One of the limited circumstances is if an individual poses a “direct threat” due to a medical condition.
According to the U.S. Equal Employment Opportunity Commission, the COVID-19 pandemic meets the direct threat standard. The U.S. Centers for Disease Control and Prevention and public health authorities have acknowledged community spread of COVID-19 in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings. Numerous state and local authorities, Hawaii included, have issued closure orders for businesses, entertainment and sport venues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion.
This shows a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace. Therefore, a COVID test is likely a medical examination that can be required by the employer as it falls under the direct threat exception.
In accordance with School Code Procedure #5100.2 (p. 43 of 547), Department Directed Medical Examination for Employees, the principal:
b. Informs employee of examination requirements (appointments, physician and other attendant details).
c. If necessary, arranges for special short-term leave with pay (completes and processes Form 400a) and provides substitute teacher(s) when required.
If you opt for weekly testing, check with your principal on School Code Procedure #5100.2, preferably in writing should you need documentation later. Here are some things to ask:
When should you get your regular COVID-19 test?
- When will you be provided release time during the school day, or will you be given special short-term leave with pay?
Where should you obtain your free test?
- If a free test is not available, check with the principal on where you should obtain your test.
- If you are required to pay for the test, save your receipt and follow HIDOE/public charter school procedures for reimbursement.
If you are denied, please contact your UniServ Director.
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