Dear Members,

On July 30 th Governor Kevin Stitt issued the Third Amended Executive Order 2020-20 , which outlined 24 different emergency orders related to Covid-19, including a requirement that the State Department of Education (“SDE”) create an optional plan for monthly testing of educators across the state. Here is the language of that order: #23.

The OSDH shall work with the Oklahoma State Department of Education to create a plan for, at a minimum, the optional monthly COVID-19 testing of every Teacher, as defined by 70 O.S. § 1-116, and Support Employee, as defined by 70 O.S. § 1-116. The Plan should prioritize the testing of people physically working in school buildings and may include creating private-public partnerships to increase testing capacity and coordinating with County Health Departments and other stakeholders, as necessary. The Plan shall be finalized by August 21, 2020. Neither the Plan nor this provision shall limit the ability of a local board of education to provide for additional testing.” (emphasis added).

Importantly, this order merely mandates a plan be created by the SDE for Optional testing and specifically does NOT require a plan for mandatory monthly testing of educators. Also important is the fact that the SDE has until August 21, 2020 to create this optional testing plan and the SDE plan does not yet exist for review purposes. POE spoke with the Secretary of Education, Michael Rogers, today and confirmed that the testing plan included in the executive order is indeed Optional .

Return to work testing may be required for those who tested positive for COVID-19 per local and state policies and guidelines. Although there is some federal agency authority to suggest that regular mandatory testing of employees, whether or not they have been exposed or are symptomatic, may be legal, nothing in the law mandates such regular mandatory testing of employees. Indeed, POE believes that school districts would be required to show appropriate business necessity and a direct threat to the health and safety of others based on reasonable evidence to mandate regular employee testing as demonstrated by local health conditions in the subject community and based on express directives and/or orders from state or local authorities.   

At this time, we do not believe Oklahoma school districts will universally adopt a regular mandatory testing policy for all educators in their school district regardless of and without consideration of local community health conditions relating to COVID-19. However, if you have additional testing questions or a specific testing issue in your school district, please feel free to contact POE. Thank you.

Sincerely,

Ginger Tinney, POE Executive Director
Blake Sonne, POE General Counsel
Eli Plant, POE Associate General Counsel