STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
July 28, 1971
Dr. Don Barnhart
State Superintendent of Public Instruction
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 71-31
Health certificates for school employees
Dear Dr. Barnhart:
You have submitted the following information:
Chapter 124, SL 1971 (HB 813) repealed and reenacted SDCL 13-43-3. SDCL 13-43-3 currently reads as follows:
The governing agency of a public or private school may require a health examination of any of its teachers or prospective teachers and require said teacher to produce a certificate from a regularly licensed physician showing the absence of any disease.
Whenever any governing agency of a public or private school by resolution or otherwise requires a teacher or a duly qualified candidate for a position as teacher to have said certificate, such governing agency shall pay for all physical examinations or tests necessary to be undergone by said teacher to secure said certificate out of funds allocated for the operation of such public or private school.
Based upon the option of a school district to either require or not to require a health examination of any of its teachers or prospective teachers, some school districts by resolution provided for such an examination, and in so requiring an examination provided for the cost thereof.
SDCL 13-43-3, as amended, reads as follows:
The governing agency of a public or private school shall require each employee, who is in regular contact with pupils, to yearly submit, as a condition of entering or continuing employment, a certificate of health signed by a licensed physician on a form prescribed by the South Dakota State Department of Health. The certification shall include a statement that there is no evidence of physical condition that would conflict with the heal th, safety, or welfare of the pupils; and that freedom from tuberculosis has been established by chest x-ray or negative tuberculin skin tests.
Those employees now under treatment for tuberculosis or having a positive skin test shall be evaluated yearly by a licensed physician to assure non-communicability.
The x-ray or tuberculin tests used shall be of the type recommended by the state department of health. As an alternative to such tuberculin test requirements, the employee shall present:
1. Certification from a licensed physician stating the physical condition of the employee to be such that the test would seriously endanger his life or health; or
2. A written statement that he is an adherent of a religious denomination whose religious teachings are opposed to such (test(s).
If at any time there is a reasonable cause to believe that an employee is suffering from an illness detrimental to the health of the pupils, the school board may require a new certification of health. The expense of obtaining additional certificate of health will be borne by the school.
Based on the above information, you have requested an official opinion on the following questions:
1) Is the employer or the employee obligated to pay the cost of providing a certificate of health?
2) What does the term "regular contact" mean in the above statute?
3) Will it be possible that some class of school employees will be excluded from the health certificate requirements?
4) Does the term "certificate of health" imply a physical examination only, or does it also include an evaluation as to (emotional) health?
The above statute, effective July 1, 1971, sets forth the requirements and necessity for certificates of health for employees who are in regular contact with pupils in the public and private schools of the state.
The last sentence in the above statute provides that, "the expense of obtaining additional certification of health will be borne by the school." Therefore, it is my opinion, in answer to your first question, that the initial certificate of health each year for those employees who are required to furnish such certificate should be paid for by the employee, and that it is mandatory that the employer pay for the cost" of obtaining an additional certificate of health.
In answer to your question No.2 WEBSTER'S SEVENTH NEW COLLEGIATE DICTIONARY defines the word "regular" as "recurring or functioning at fixed or uniform intervals," and the word "contact" as '''an establishing of communication with someone."
Therefore, it is my opinion that most employees of the school, such as teachers, bus drivers, and cooks would have regular contact with students; however, employees such as certain janitors and secretaries might be considered as not having regular con tact with students. The governing board would have to make a determination of what employees have regular contact with students, based upon the assignment and duties of such employees and such employees would therefore need a certificate of health.
In answer to your question No.3, it is my opinion that there would be no specific class of employees that would be exempt, but rather, there could be specific employees within a class who could be exempt.
I n answer to your question No.4, it is my opinion that the certificate of health, as required by the above statute, includes only a certificate as to the physical condition of the employee and does not require a certificate as to the mental or emotional health of the employee.
Respectfully submitted,
Gordon Mydland
Attorney General
