FAQ: MMB COVID-19 Testing/Vaccine Policy and Masking

 

Last Updated: September 7, 2021


Disclaimer: This publication is for informational purposes only and is not intended as a substitute for specific legal or other professional advice.  If you have specific questions about your legal or contractual rights, please contact your field staff.  This guidance will be updated periodically based on new information and guidance, so please refer back for the most current information. Sources used for this FAQ include MMB’s FAQ, MinnState’s FAQ, conversations with MinnState Labor Relations, and the Education Minnesota Legal Department.

 

1. Where can I find the MMB HR/LR Policy #1446?

 

The policy can be found HERE.

 

2. What are the requirements of the COVID-19 Proof of Vaccination and Testing policy?

All Minnesota State employees are required to provide proof of COVID-19 vaccination status or participate in weekly testing for COVID-19 if the employee:

   -Is assigned to the workplace (campus, system office, etc.), or

   -Wishes to access the workplace (campus, system office, etc.) for more than 10 minutes, or

   -Otherwise provides Minnesota State college and university services outside the staff member's home.

This includes telework-only employees traveling, either in-state or out-of-state, on Minnesota State business.

3. What is MSCF doing about the policy?

Our legal counsel has informed us that MMB can create this policy; however, we do have the right to negotiate how the policy will be implemented. We have sent a demand to meet and negotiate over the impact of the policy, known as impact bargaining.  We anticipate most of the unanswered questions will be answered through this process.

4. Who are considered "employees, contractors, vendors, volunteers, and interns"?

All Minnesota State faculty and staff, including student workers, those on work study assignments, graduate assistants, contractors, and vendors serving as an extension of campus or system office staff and providing services on behalf of Minnesota State (including but not limited to food service contractors, bookstore contractors, and security contractors) and Foundation employees.

The following are NOT subject to the policy: construction contractors, referees and officials, contractors who do not have a long-term engagement on campus such as guest speakers/presenters, specific project or training consultants, individuals providing repair or technical services, etc. In addition, those non-Minnesota State entities leasing space on Minnesota State campuses (Workforce Centers, Libraries, Independent School District [ISD] employees and students), etc.) are also not included.

5. Does this policy apply to work-study students, student workers, and/or graduate assistants?

Yes. Students employed in these categories are covered under this policy consistent with Minn. Stat. 43A.08. Also, by doing so we are being consistent with how we have been treating student workers under broad state mandates such as the wage notice law and unemployment insurance.

6. If my teaching assignment is online, does this apply to me?

MinnState Labor relations has stated faculty with a 100% online teaching load will not have to comply with the policy until they are required to come to campus. They will not be considered out of compliance during the period they are not coming to campus.

Vaccinations

7. Can my campus/college require me to be vaccinated?

 

Yes, unless you have a disability that prevents you from getting vaccinated or sincerely held religious exemption. However, this policy does not create a vaccine mandate; it creates a testing mandate. Those who provide documentation of vaccination are exempt from the testing mandate.

8. Is it legal for the employer to ask faculty about their vaccination status?

 

The most practical way to determine a person's vaccination status is to ask or require students and faculty to provide documentation in the form of a vaccination card of documentation from a medical provider.

 

In May, the Equal Employment Opportunity Commission, which enforces and provides guidance on federal anti-discrimination laws, issued guidance stating that employers could mandate that employees be vaccinated, provided that the employer makes accommodations for employees who do not get vaccinated because of a disability or a sincerely held religious belief. (See section K). In addition, the Fifth Circuit Court of Appeals recently held that a hospital in Texas had the right to require its employees to get vaccinated. Although this decision is not binding in Minnesota, it is persuasive, and it relied on a prior Supreme Court decision upholding the constitutionality of vaccination mandates.

 

Because the requirement to be vaccinated is a term and condition of employment, employers must bargain any vaccine mandate with an exclusive representative.

 

Based on this guidance, it is likely the case that campuses/colleges may legally ask faculty whether or not they are vaccinated, but they should not ask additional information about an employee’s health condition unless it is for the purpose of making an exception to a vaccine mandate based on disability or religion. Employers should also maintain this information in confidence, as it likely constitutes private personal data under Minnesota law.

9. Can employees request an exemption from the proof of vaccination requirement?

 

Individuals have the right to refuse to receive a COVID-19 vaccination and to refuse to provide an attestation reflecting their COVID-19 vaccination status, but those individuals will be considered to be unvaccinated for the purposes of this policy and be required to participate in weekly testing if they are assigned to the workplace (campus or system office); wish access the workplace (campus, system office, etc.) for more than 10 minutes, or otherwise provide Minnesota State college and university services outside of their home.

10. What does it mean to be "fully vaccinated" under this policy?

 

According to the CDC, in general, people are considered fully vaccinated against COVID-19:

     -2 weeks after their second does in a 2-does COVID-19 vaccination series approved by the U.S. Food and Drug                              Administration ("FDA") or the World Health Organization ("WHO")

*Pfizer-BioNTech COVID-19 vaccines (e.g., Comirnaty, Tozinameran)

*Moderna COVID-19 vaccine

*AstraZeneca-Oxford COVID-19 vaccines (e.g., Covishield, Vaxzevria)

*Sinopharm COVID-19 vaccine

OR

    -2 weeks after a single-dose COVID-19 vaccine approved by the FDA or the WHO

*Janseen (Johnson & Johnson) COVID-19 vaccine

Individuals who do not meet these requirements are NOT fully vaccinated.

11. How will campuses/college/MinnState know whether students and faculty are vaccinated?

Employees will need to provide proof of vaccination and complete an attestation form online using the VaxTrack app.

Proof of vaccination will be:

-An original CDC COVID-19 vaccination card; 

-A paper or electronic copy of a CDC COVID-19 vaccination card; or

-An original or copy of an alternative official vaccination record, as proof of FDA-or-WHO-approved COVID-19 vaccination status, if vaccinated in another country.

Proof of full vaccination against COVID-19 must legibly show, at a minimum:

-Name of the individual vaccinated

-Date of birth of the individual vaccinated

-The manufacturer of the vaccine

-The date(s) on which the vaccine was administered.

12. Can an individual provide a positive antibody test and be exempt from the testing requirement?

 

No. A previous COVID-19 infection reflected in a positive antibody test has no impact on the testing requirement. The only allowance in the policy to be exempt from the testing requirement is to provide proof of vaccination.

Testing

13. What kind of test is required for individuals who do not submit proof of vaccination?

 

If there is no on-site testing available, the employer can determine which test is acceptable and from which locations. The primary forms of testing are PCR testing for both symptomatic and asymptomatic individuals (usually, results provided in a matter of days) and antigen testing, most often indicated for symptomatic individuals (usually, results provided in minutes or hours). We are awaiting additional information from the system office on which type of test will be required.

14. Who is responsible for the costs associated with testing? If we do not have on-site testing, do we have to pay mileage?

The employer, in this case the individual college, not the system office, is responsible for the costs associated with testing. Mileage will be reimbursed according to applicable Minnesota State policies if on-site testing is unavailable. In addition, travel and testing time will count as work time.

15. Will an individual's health insurance be billed for testing even if college or university pays for the testing?

 

SEGIP has indicated that regular testing required to access a work site will not be covered by SEGIP health insurance policies.

16. Are individuals cleared to work while waiting for test results if one week has lapsed since the previous test? How long   is a negative test good for?

 

Yes, individuals may continue to work while waiting for test results. The employer will determine testing dates, which will occur at least weekly. An individual’s negative test is valid until the next testing date determined by the employer.

17. Who is responsible for submitting the test results to HR and when should they be submitted?

 

The faculty must provide their HR documentation of test submission either on the same day or no later than the next day the staff member is scheduled to report to work, and must submit documentation of test results on the same day the staff member receives them if it is a workday, or no later than the next day the staff member is scheduled to report to work.

 

18. If an employee refuses a mandatory test but then goes on their own to get tested, will they be reimbursed?

No. If an employee refuses a mandatory test, but later determines they wish to be tested, they may obtain a COVID-19 test on their own time at their own expense and have the results reported to their HR. The college will not pay for testing, time, or mileage in that situation.

Tracking

19. How will attestation of vaccination and weekly testing be collected and documented?  Will weekly reports be available?

The system will deploy a systemwide technology solution that can track both COVID-19 vaccination attestations as well as weekly testing. This solution will be used for all Minnesota State campuses and the system office. Information Technology is working with Human Resources and the CIO advisory group on identifying one solution that can be deployed to your campuses, ideally for both employees and students.

UPDATE: The VaxTrack app is being deployed to all MinnState colleges this week.  Colleges have been divided into 3 cohorts.  Deployment will be September 7, September 8, and September 9. 

20. What happens if employees can't access the VaxTrack app?

If employees are unable to access the tools they need to comply with the policy, they will NOT be considered out of compliance.

21. What happens to the date collected under this policy?  Who has access?

Campuses and the system must maintain the confidentiality of employee COVID-19 test results and vaccination status as provided by law. All information gathered under this new policy, including test results, vaccination status, attestation forms and signed COVID-19 Testing 4 Consent forms, will be retained by HR according to the applicable retention schedule and in a secure medical file separate from the employee’s personnel file. Once HR staff have verified proof of vaccination status, original or paper copies will be returned and any electronic copies of proof of vaccination will be deleted. Testing information may be shared with the designated testing laboratory, the designated vendor, the Minnesota Department of Health, local public health, limited HR staff, campus safety administrator, limited campus and system employees with a business need to know, and others authorized by law.

Our understanding is supervisors will only be told if a faculty is cleared to come to campus or not. They will not be told the reason an individual is cleared or not.

22. How is the policy going to work for faculty that have multiple work sites?

 

Our understanding is faculty will need to fill out an attestation form or testing form for each site they are working at. The attestation form and proof of vaccination will only need to be submitted once.

Miscellaneous Questions

 

 

23. Can individuals request ADA accommodations related to this policy?

 

Requests for an accommodation under the ADA are handled on a case-by-case basis. Seek counsel from your Human Resources staff and MSCF Field staff.

24. Can a teleworking employee who does not want to submit proof of a full COVID-19 vaccination instead pay for their own test and submit results if they want to come to the workplace occasionally?

 

No. If a teleworker wishes (but is not required) to access the workplace for more than 10 minutes, they must attest to and provide proof of full COVID-19 vaccination; test results will not be accepted in lieu of a vaccine. IF the teleworker is required to enter the workplace, then they will be subject to the same vaccine or test requirement as for non-teleworkers.

25. Does MinnState/College Presidents have a legal right to require faculty, staff, and students to wear masks?

 

Yes. Even if a campus/college does not have a vaccine mandate for students and staff, and even if the state does not require face coverings, individual campuses may choose to implement CDC guidance by requiring faculty and students to continue wearing face coverings indoors if they are not fully vaccinated against COVID-19.

 

The U.S. Equal Employment Opportunity Commission has issued guidelines which state that an employer may require employees to wear masks to reduce the spread of COVID. Here is the relevant excerpt: "12. During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection? Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.

26. What will happen to faculty who do not submit an attestation form or get tested?

 

Employees who do not attest to vaccination or submit test results, essentially who do not comply with the policy, will be considered unable to work and placed in unpaid status.  If the employee does not come into compliance, they could face disciplinary measurers. 

27. Will MSCF represent members who are disciplined for refusing to get vaccinated or wear a mask?

 

While MSCF cannot grieve the policy itself, we can grieve the process to make sure it is being followed correctly and that any discipline issued follows the process laid out in our collective bargaining agreement.