Apparently tomorrow, the Los Angeles Unified School district is requiring all teachers to wear masks all day in school and is also requiring weekly COVID testing with the PCR test. I know this because I’ve been getting emails and calls to my cell today from teachers wanting to obtain/assert a “religious exemption” to the mask requirement.
First, I have a few choice words for the person who posted my cell phone number and said it was a good idea to call me on the weekend.
Second, there is no such thing as a religious exemption to a health and safety public school employee mandate. Employers are required under federal employment law to offer a reasonable accommodation to a work condition, IF there is a reasonable accommodation to be made that will not adversely affect public health in the judgment of the employer.
In the COVID world, that mainly means work at home or work alone, if that is viable. Obviously, there are jobs where that is not viable like food servers and airline flight personnel, and I would argue teachers when schools have reopened for in-person learning. Accordingly, I do not think there is a reasonable accommodation to a mask requirement for a school teacher, especially since the students are also required to wear a mask. Students and their parents would get pretty heaved off if everyone in the school had to wear a mask except the teacher. That’s just not going to fly.
And I don’t care what biblical verse you quote because it will sound as pretextual as it is. And by the way, it is probably not a good idea to say you object to covering your face because Muslim women do it and you are not a Muslim. (actual statement from an inquiring teacher)
And no, I am not interested in representing any of you teachers who want to exercise your religious freedom not to wear a mask even though all your students are wearing them. I want to see every school opened, and if the authorities are going to require everyone to wear a mask, that’s ok with me, as long as they open the schools and keep them open.
The required PCR testing issue is more complicated. As you all know, it is only EUA allowed not FDA cleared, which under federal law means or should mean that it can’t be compulsory, meaning mandated by the federal government.
As I stated in prior posts, California has a statutory Nuremberg Code, but I haven’t looked at it hard in the context of a test and I think there is some wiggle room even with respect to therapies.
The issue has been litigated in New York when New York City required the PCR test for teachers. But, the judge refused to grant a preliminary injunction stopping it, which was what I thought he would do. I am sure the judge wanted the schools to be reopened and he wasn’t going to be the one to hold that up and substitute his layman public health judgment for the judgment of the public health officials who were responsible to protect the health of the students, teachers and everyone else in the schools. Judges typically reflect the established scientific consensus; they do not normally take the minority view or any view other than what those entrusted with making these decisions decide.
So I am inclined to think that the California courts would uphold the PCR test, or at least, not grant a preliminary injunction stopping a school district from requiring it. If that were to happen, I think it would take more than a set of papers back and for and an oral argument on a motion for a preliminary injunction. Why? because… you guessed it, they want to get and keep the schools open, and the safest play for any judge to do that is not to interfere with the decision of the authorities, and if that means bending some state or federal language to kick the can down the road, that’s what will be done.
I’d like to say that I wish the LA teachers who are “religiously” opposed to wearing a mask good luck tomorrow, but I won’t because I don’t wish them good luck. They will not receive a warm reception from the authorities. Or at least I hope they won’t because I want the school to open and stay open, and if the kids have to wear masks, so should the teachers.
Rick Jaffe, Esq.
addendum: for those who complain that it’s a free country or should be, and no one should have to wear a mask. What I can say is the law is otherwise. Your personal freedom ends or is limited by consideration of the person next to you. You don’t have the right to endanger other people. And, no one or small group of individuals have the right to make their own determinations about what endangers other people. That is left to the people who have been hired to make those decisions with very, very limited review by the courts. Bottom line, wear a mask if you are required to or quit and do something else that does not require it.