The question on appeal is whether the Court correctly interpreted Education Law section 3635 as requiring school districts outside of New York City to transport non-public school students on days that the non-public schools are open, but the school district's public schools are closed.

This ruling is contrary to the District's policy and decades of guidance and interpretation by Defendant/Respondent SED with respect to Education Law section 3635.

The State is arguing that grounds for reversal are that:

(1) the lower Court misinterpreted and misapplied Education Law section 3635 in concluding that that statute mandates that the District provide transportation to all non-public school students within the District on each day that the non-public schools are in session, regardless of whether the District's public schools are closed;

(2) the lower Court erred and abused its discretion in granting a summary judgment to the Petitioners-Plaintiff-Respondents despite their failure to comply with section 202.8-g of the Uniform Rules of the Court; and,

(3) the lower Court erred and abused its discretion in granting a summary judgment to the Petitioners-Plaintiff-Respondents despite their failure to file the pleadings in action as part of their motion for summary judgment.

Click on the links below to download the notice of appeals and the recent notice of appeal to the Appellate Division of the Supreme Court for the Third Judicial Department filed by NYSED.

Notice of Appeal Filed 11/22/21

Notice of Appeal Filed 11/23/21

Supreme Court Filing 11/22/21

Click here for the memo in PDF format to download.

NYSBCA has received confirmation that if an employee refuses to get vaccinated or tested, then they become ineligible to collect unemployment benefits under the New York State Department of Labor (NYSDOL) policy.

From NYSDOL website: https://dol.ny.gov/unemployment-insurance-top-frequently-asked-questions

If a worker refuses to get vaccinated, will they be eligible for UI benefits?

Like all UI claims, eligibility will depend on the circumstances as each claim is unique and reviewed on a case-by-case basis. Workers in a healthcare facility, nursing home, or school who voluntarily quit or are terminated for refusing an employer-mandated vaccination will be ineligible for UI absent a valid request for accommodation because these are workplaces where an employer has a compelling interest in such a mandate, especially if they already require other immunizations. Similarly, a public employee who works in a public setting and is subject to a local government mandate to submit proof of vaccination or negative testing may be disqualified from the receipt of UI if they refuse to get vaccinated or tested. In contrast, a worker who refuses an employer’s directive to get vaccinated may be eligible for UI in some cases, if that person’s work has no public exposure and the worker has a compelling reason for refusing to comply with the directive.

UNEMPLOYMENT INSURANCE FREQUENTLY ASKED QUESTIONS

Who qualifies to COLLECT unemployment insurance? According to the Department of Labor, you're eligible for UI benefits if you:

What qualifies to be DENIED unemployment insurance?

Can you collect unemployment if you're fired for refusing the COVID-19 vaccine or testing?

On Friday 11/5, OSHA published to the Federal Register, a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), effective immediately that will require employers with 100 or more employees to:

• Have Employees Vaccinated by January 4th and Require Unvaccinated Employees to Produce a Negative Test on at Least a Weekly Basis,
• Pay Employees for the Time it Takes to Get Vaccinated,
• Ensure All Unvaccinated Employees are Masked,
• Implement Reporting Requirements,
• Provided Information Gathered to Employees, and
• Follow New Vaccination Requirements for Health Care Workers

In accordance with the Federal Motor Carrier Safety Administrations (FMCSA) waiver regarding medical certification, CDL holders whose Medical Examiners Certificate (MEC) expired prior to June 1^st were  placed in a “Not Certified” status and notified by mail that their license would be downgraded to a non-CDL class if an updated medical certificate was not received and posted to their DMV record within 55 days.  This reminder is being sent to advise you that on Monday November 8, 2021, any driver whose medical certificate expired prior to June 1^st that did not submit an updated medical certificate will have their CDL downgraded.

Additionally, the  FMCSA waived until November 30, 2021, the requirement under 49 CFR 391.45 that CDL holders, CLP holders, and non-CDL drivers have a medical examination and certification, provided they have proof of a valid medical certification and any required medical variance (as defined in 49 CFR 390.5T such as an exemption letter or a skill performance evaluation certificate) issued for a period of 90 days or longer and expired on or after June 1, 2021. Drivers whose MEC expired on or after June 1, 2021 must have a current valid MEC on file with DMV by November 30, 2021. On December 1, 2021, drivers in this category who do not have an MEC on file will be placed in a “Not Certified” status and will be notified that their license will be downgraded to a non-CDL class.

The FMCSA waiver can be found here:

https://www.fmcsa.dot.gov/emergency/waiver-response-covid-19-national-emergency-states-cdl-holders-clp-holders-and-4

Email Address Clarification Regarding Expedited Road Test Requests

To report the need for expedited road tests, please send an email to: dmv.sm.TandI@dmv.ny.gov

The "T" and "I" MUST BE capitalized; otherwise, the email will not go through.

Kevin Kohli, Operations Programs and Support with the Department of Motor Vehicles said they are working on having the email work whether or not the "T" and "I" capitalized, but in the meantime, to ensure the email goes through, capitalize the "T" and "I".

Cummins and IC Corp. have identified an issue with the DEF/QLS on certain Cummins engines. Due to a supply chain issue, parts are not readily available for proper repair.

NYSDOT has been made aware of a software update that can be performed as a temporary repair until parts are available.

Jeff Corey, Field Operations Manager, Bus Inspection Program, with NYSDOT has notified NYSBCA the following regarding the Cummins DEF QLS Issue.

Cummins and IC Corp. have identified an issue with the DEF/QSL sensor and replacement parts are unavailable at this time. Please see attached guidance on how to proceed with inspections for these vehicles and pass this information onto all MVIs.

As of this date, Blue Bird Corp. will not allow any DEF software updates on their vehicles. If I receive any information from other manufacturers I will pass it along.

Click below on the attachments.

DOTMemo-CumminsDEF-QLS

ICLetter-DEF

Cummings-DEFStatement

Decal-DEFGaugeInoperative

It is with deep sorrow that we announce the passing 
of Nicholas Fabrizio, Independent Coach Corp.

Image From: 

NYSBCA's 2014 Annual Convention in
Long Island with Robert Pape presenting the 2014 Contractor of the Year award to Nicholas Fabrizio.

Nicholas Fabrizio was a pillar of our industry for
over 70 years and will surely be missed.

Viewing for Nicholas Fabrizio are as follows:

Friday, September 24, 2021
1:00 - 5:00 p.m. and 7:00 - 9:00 p.m.

Perry Funeral Home
118 Union Ave, Lynbrook, NY 11563

A Catholic mass will take place at Our Lady of Good Counsel Church at 68 Wanser Ave, Inwood, NY 11096 on Saturday, September 25, 2021 at 10:00 a.m.

Burial to follow at Trinity-St. John's Church, 1142 Broadway, Hewlett, NY.

In lieu of flowers, the family has requested 
donations be made in Nicky's name to:

Rock and Wrap It Up: www.rockandwrapitup.org

Tunnel to Towers Foundation: https://t2t.org

St. Jude Children's Research Hospital: www.stjude.org/donate/pm.html

Click Here for the link to download the mandate from DOH.

Interim NYSDOH Guidance For Classroom Instruction In P-12 Schools During The 2021-2022 Academic Year | September 2, 2021 

Rockland/Westchester Journal News
Written By: Gary Stern

A worsening shortage of school bus drivers across the state and the country is hitting home in the Hudson Valley, including in Yonkers, where close to 500 new students may not be able to get a bus when the city's schools open next Thursday.

New York's fourth largest school system transports about 11,300 students on 464 buses and vans. But private busing companies contracted by the district no longer have enough drivers to keep up with Yonkers' growing student enrollment.

So parents and guardians may have to find other ways to get their kids to school.

"We're working hard to resolve this, but we're at the mercy of the companies we contract with and they don't have enough drivers," Yonkers Superintendent Edwin Quezada said Thursday. "It's a nationwide problem."

The district and its bus companies got a slight reprieve when the opening of school was delayed Thursday until Sept. 9 because of flooding.

Across New York, many districts now have 15-20% fewer drivers than they need, said David Christopher, executive director of the New York State Association of Pupil Transportation.

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"Almost every school I talk to has routes open for the start of school," he said. "It could be one or two, or 10 or 15, depending on the size of the school district. And everyone needs substitutes because people call in sick."

COVID worsens shortage

A shortage of drivers had been developing for years when the COVID pandemic quickly exacerbated the problem for schools. Drivers are traditionally older, often retired, and many left their jobs to lower the risk of getting sick.

"Our demographic is high risk — older and often with health concerns," said Tammy Mortier, executive director of the New York School Bus Contractors Association. "A lot of drivers didn't want to be around children and put themselves at risk."

About one third of New York's nearly 700 school districts have their own fleets of buses and hire their own drivers, while two thirds of districts contract with private busing companies.

Enhanced unemployment benefits have also enticed many drivers to stay home, Christopher and Mortier agreed. They believe the expiration of enhanced benefits on Sept. 6 could draw more people to driving jobs.

But another challenge is that it can take up to 12 weeks in New York for a prospective driver to get the required training and certification to drive a school bus.

Most drivers in New York are part-time and wages vary. Upstate drivers make $13-15 an hour, while downstate drivers can make twice as much, Christopher said.

The Wappingers school district consolidated bus routes for the new school year, eliminating the need for 15 drivers, because of the ongoing driver shortage. The district has its own fleet of buses, but began contracting last year with a private bus company to take over 35 routes because the district was short of drivers.

"It's one of the most important things we do: make sure our students have a safe ride to and from school," Wappingers Superintendent Dwight Bonk said.

Wappingers should be able to bus all eligible students for the start of the school year, But the district is still displaying "Now Hiring" banners on buses at three schools that advertise the need for drivers and monitors.

Chestnut Ridge Transportation, a Spring Valley-based company that provides busing to the East Ramapo, Suffern and Pearl River districts, still doesn't have quite enough drivers for the start of the school year, Vice President Tim Flood said.

"We're short a few routes, but fortunately two districts haven't started yet so we have a little time to get people in the seats," he said.

Flood said the company has about 350 drivers but would prefer to have over 400. So dispatchers and other office workers may have to drive when schools open.

"There isn't a quick solution, so we're working with school districts to make routes as efficient as possible," Flood said. "We need flexibility."

No subs

Even many school district and bus companies that have just enough drivers to start the school year say they don't have substitutes, which can present day-to-day problems as the year progresses.

Quality Bus Service, a New Hampton-based company that serves the Chester and Sparrowbush area in Orange County, lost about 40% of its drivers and is now barely 100% staffed after raising its hourly rate by $2. But the company would prefer to be at 105-110% of staffing so back-up drivers would be available.

First Student, a national bus company that serves at least 75 districts in New York, including Yonkers, has tried several strategies over the last year to hire more drivers, including doing more recruiting, holding open houses, and offering higher wages and signing bonuses, said spokesman Brian Fitzgerald.

"We've been working on everything, but the boat doesn't turn that quickly because of the qualifications and certifications required," he said.

Fitzgerald said First Student has about 4,000 drivers in New York but could use 400-600 more.

School districts might want to contract with additional bus companies as the school year nears, but state law prohibits them from doing so for more than a month without a bidding process. Quezada said he talking to the state Education Department about whether it could be possible to temporarily change the rules.

In the long term, officials said, school districts may have to work with the state Education Department and bus companies to raise the status of the bus driving profession.

"Bus driving has been seen like a retirement job or second job, but with the certification requirements that are in place, it's more of a profession," Christopher said. "We have to do more to attract people to the profession, and that means more pay and better benefits. But you also have to raise the profile; driving is a community service."

Staff Writer Helu Wang contributed to this report.

Gary Stern is an editor/writer covering K-12 education in the Hudson Valley. Reach him at gstern@lohud.com. Twitter: @garysternNY.

Click here to view the article online.