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September 16, 2021
Dear Brothers and Sisters:
As you know, the City of New York (the “City”) has imposed a vaccine mandate for all employees working in City schools. Earlier this week, Local 237 filed for arbitration in order to protect the rights of our School Safety Agents (“SSAs”), food service workers, and other members who work in the schools. .
Today, the independent arbitrator issued a decision that:
(1) forced the City to back off its original plans to offer no exemptions for those unable to take the vaccine for medical or religious reasons;
(2) upheld Local 237’s position that the City must allow an employee who is granted a medical or religious exemption or a medical accommodation (as described below) to remain on the payroll (but not enter a school building) while the exemption and/or accommodation is in place. The employee may be assigned to another work site or location, or temporarily detailed to another City agency.
3) upheld Local 237’s position that any unvaccinated employee who has not requested an exemption, or one who has requested an exemption that has been denied, may be placed on a non-disciplinary leave without pay, during which time the employee is eligible for health insurance for a period up to a year (see the discussion below for more details about this);
4) upheld Local 237’s request that women who start their third trimester of pregnancy on or before September 27 may utilize sick leave, annual leave, and/or compensatory time prior to the child’s birth date (and then may be eligible for paid family leave); and
5) establishes an expedited process to appeal denials of exemption or accommodation requests. A neutral arbitrator will hear the appeal and decide it on an expedited basis. Members will have a right to have a union representative with them at the hearing and the cost of the arbitrator will be borne by the agency. If the appeal is granted, members may remain on the payroll (see #2, above).
A copy of the arbitrator’s decision is posted on Local 237’s website.
The City’s vaccine mandate goes into effect on Monday, Sept. 27. The arbitrator’s decision does not change that. All DOE-employed Local 237 members employed by the BOE and School Safety Agents employed by the NYPD who do not qualify for an accommodation or exemption must have at least one dose of the vaccine by then.
Local 237 members will have until 5:00 p.m., Tuesday, Sept. 21, to apply for an accommodation or exemption.
The online form for a medical accommodation or exemption for DOE employees can be accessed through the Self-Service Online Leave Application System (“SOLAS”). School Safety Agents may apply by filling out the Special Medical & Religious Exemption From COVID-19 Vaccination Requirement for School Safety Agents form (the “NYPD Form”). A copy of the NYPD Form has been emailed to you by the City and is posted on Local 237’s website.
Here are reasons a Local 237 member may seek an accommodation or exemption:
Accommodations for vaccinated immunocompromised individuals
Vaccinated Local 237 members with weakened immune systems may apply for a medical accommodation. Requests for an accommodation must be documented in writing by a medical doctor.
If the accommodation is approved, the immunocompromised member must be offered work in a non-school building as long as their medical condition lasts.
Medical exemptions
Permanent medical exemptions to the vaccine mandate will only be considered where the individual has a documented allergic reaction such that the member cannot receive any of the three authorized vaccines (Pfizer, Moderna, and Johnson & Johnson).
Temporary medical exemptions to delay getting a vaccine will be granted when:
• Within the isolation period after a positive COVID diagnosis.
• Within 90 days of monoclonal antibody treatment of COVID-19.
• Conditions that may warrant temporary medical exemption because of active therapy or treatment, such as chemotherapy, stem cell transplant, CAR T-cell therapy.
• Pericarditis or myocarditis (conditions causing inflammation of the heart).
These requests must be documented in writing by a doctor and the length of time for delay will depend on the condition.
If denied, the member will have one school day to file a notice of appeal. An independent arbitrator will promptly review the appeal — and convene a hearing if necessary — before issuing a final determination. During the appeal process, the member will be temporarily granted the exemption and kept on payroll.
Religious exemptions
Exemption requests will be considered for recognized and established religious organizations and not where the objection is personal, political or philosophical in nature. Applications for religious exemptions must be documented in writing by clergy or a religious official. On appeals from denials, the arbitrator may consider additional evidence to determine whether the religious objection is bona fide.
Appeals of religious exemption denials will be heard by the same independent arbitrators ruling on medical exemption appeals. During the appeal process, the member will be temporarily granted the exemption and kept on payroll.
Members in their last trimester of pregnancy
Local 237 members in their last trimester of pregnancy as of September 27, 2021, whether vaccinated or not, have the option to go on leave immediately.
• First, after September 27, 2021, members can use their sick leave, annual leave or compensatory time (“comp time”) prior to the child’s birth.
• If the member exhausts their available paid leave before giving birth, the member will be placed on unpaid leave but will retain health benefits at least until the birth of the child. Members in this situation may be eligible for other leave available under law or may use unpaid leave, as described below.
Members in their first two trimesters of pregnancy must be vaccinated if they want to remain on payroll.
Options for all other Local 237 members
Members who are not vaccinated by Sept. 27 and do not qualify for a medical accommodation or an exemption must be offered two options, both of which include health coverage through Sept. 5, 2022 under the terms outlined below (unless other health coverage is obtained before that date):
1. Unpaid leave option:
By November 30, Local 237 members may opt for an extended, unpaid leave through Sept. 5, 2022. Health insurance for members who choose the extended, unpaid leave will continue during the leave period through Sept. 5, 2022 under certain specified conditions. Members cannot take other employment during this leave.
Members on unpaid leave who do not elect to take an extended leave and do not agree to a separation of their employment (see below) by Nov. 30 may be unilaterally terminated by the DOE or the NYPD as of Dec. 1, 2021.
If at any time prior to Sept. 5, 2022, a member on unpaid leave takes the vaccine, the member may return to work.
On Sept. 5, 2022, if the City’s vaccine mandate remains in effect and the individual remains unvaccinated, the person will be automatically deemed to have voluntarily resigned.
2. Severance option:
Members have the option to resign by October 29, 2021. Members who resign by that date will be able to exchange their unused sick leave days in their bank on a 1-for-1 basis up to 100 days, though this time is not pensionable. They will also receive medical insurance through Sept. 5, 2022, as long as they do not have access to other insurance coverage during that period.
Those who take this option do not have a right of return to their school, but they will not be prevented from seeking DOE, NYPD, or City employment in the future.
Important Dates to Remember:
Sept. 21 Deadline to apply for an accommodation or exemption. Employees have one school day to appeal denials.
Sept. 27 Must be vaccinated by this date or have been approved for an exemption or accommodation.
Sept. 28 Anyone not vaccinated or approved for an exemption or accommodation is placed on unpaid leave through Nov. 30.
Oct. 29 Deadline to voluntarily separate from employment and receive unused sick days on a 1-to-1 basis up to 100 sick days.
Nov. 30 Deadline to request extension of unpaid leave through Sept. 5, 2022. Member retains health benefits, subject to certain conditions, if extended leave requested by this date.
Dec. 1 Agency may involuntarily terminate anyone who has not been vaccinated, has not received an accommodation or exemption, or has not requested an unpaid leave.
Municipal Labor Committee lawsuit continues
The arbitrator’s ruling does not resolve the underlying issue of whether the City Department of Health has the legal authority to require that DOE, NYPD and other employees be vaccinated. Only the courts can determine the legality of the mandate.
The Municipal Labor Committee, of which Local 237 is a member, filed a lawsuit challenging the mandate in state court this week. Local 237 remains a party to that lawsuit.
Gregory Floyd
President, Teamsters Local 237
SSA Exemption Form
Food Service and Other DOE workers can apply here
