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Courtesy of CureVac
K-12 Dive
What school districts need to know about COVID-19 vaccine mandates
While districts are allowed to require employees to be vaccinated, they
should consider a variety of factors before making the decision, legal
and other experts say.
Naaz Modan
Jan. 12, 2021
As frontline workers are vaccinated for COVID-19, many district leaders
say they and their staffs are waiting in anticipation for their turn in
the phased distribution.
In many states, educators and other school staff are listed in the
early phases of COVID-19 vaccine rounds, following the CDC's
recommendations to vaccinate essential workers after those in
healthcare and nursing home residents.
However, ed leaders cite a limited supply of the vaccine, slow
localized distribution processes in some places, inequitable access and
state politics among hurdles their schools face. They also mentioned
the anti-vaccination movement and skepticism about the safety of
COVID-19 vaccines, which are not U.S. Food and Drug
Administration-approved but have received emergency authorization from
the agency.
So district leaders are grappling with a big question: Should districts require staff to receive a COVID-19 shot?
Can you require a COVID-19 vaccine?
The U.S. Equal Employment Opportunity Commission, which enforces
workplace anti-discrimination laws, released guidance in December
specific to the coronavirus pandemic. Legally, there is nothing that
prohibits an employer from mandating a COVID-19 vaccination, said
lawyer Barry Hartstein, who specializes in labor and employment issues.
The agency "didn’t either endorse [requiring the vaccine] or say you
couldn’t do it — but they talked about conditions and things you need
to take into consideration," Hartstein said.
Per the guidance, "If an employee cannot get vaccinated for COVID-19
because of a disability or sincerely held religious belief, practice or
observance, and there is no reasonable accommodation possible, then it
would be lawful for the employer to exclude the employee from the
workplace," he said. But he added: "This does not mean the employer may
automatically terminate the worker. Employers will need to determine if
any other rights apply under the EEO laws or other federal, state, and
local authorities."
Should you require the vaccine?
District leaders K-12 Dive spoke with expressed the need for state- and
local-level guidance or legislation before making decisions or
recommendations to their boards.
"We’re not going to get into the business of adjudicating a vaccine
that is not being mandated from the state level. ... But I think at
some point, the state is going to do that," said Charles Dupre,
superintendent of Fort Bend Independent School District in Texas. "If
you think about how it impacts families, if we say you can't come
[without a vaccine], that's going to be a sizable number. I think until
the policy is widely spread, and legislation [is in place], we’re going
to have to tread that line very, very carefully."
At this point, Dupre isn't recommending a vaccine mandate to his board,
but said he will encourage vaccination, particularly for those with
risk factors.
"If you’re diabetic, if your BMI is over 30, if you’re considered obese ... that’s what we’re encouraging them to do," he said.
That's a sentiment echoed by Elyse Maxwell, director of marketing and
communications at Cooperative Council for Oklahoma School
Administration. "I think that we should be encouraging people to take
the vaccine who are in the priority groups," she said.
But Maxwell also said she thinks it's important for leaders to say,
"'If you have a concern to be vaccinated, have that conversation with
your school administration.' ... Make sure that you’re putting
safeguards in place so that the employee feels safe, and everyone
they're interacting with [feels safe], as well."
These are tough decisions for district leaders, said Katherine Bishop,
vice president of the Oklahoma Education Association. "Districts are
going to have to be the ones to decide who gets it first — another
burden on districts. Our districts are stretched beyond belief."
Some leaders have suggested prioritizing staff over age 65, those with
comorbidities, those working with high-risk students, and school
transportation and meal distribution workers.
Things to consider before making a decision
Harstein said he encourages employers to take into account access the
vaccine. "It’s being rolled out far more slowly than expected," said
the lawyer.
Dupre, for example, said he has had to "forage" in Texas to get his
nurses vaccinated, and Bishop is worried about Oklahoma's most rural
districts, where staff may have to drive long distances to a
vaccination site.
District leaders should also take into consideration that the Moderna
and Pfizer vaccines, which have been authorized by the FDA for
emergency use, are not yet FDA-approved. Most healthcare workplaces,
Hartstein said, are not requiring their employees to get vaccinated for
this reason. The safety and efficacy of the vaccines is also unknown
for pregnant and lactating women.
Another factor to consider before deciding whether to require the vaccine is teacher union opinions.
"If you don’t get the backing of the respective labor organizations in
the process, you’re not going to have a successful vaccination
process," Hartstein said, noting legal obligations may depend on
bargaining agreements. And even if a district's workforce isn't
unionized, Hartstein said the anti-vaccination movement may be viewed
as protected under the National Labor Relations Act.
There will also be employees contracted from outside the district, such as bus drivers.
"I do think it could be a requirement of the [job] to have a
vaccination. It’s to protect the driver as well as the student
population," Curt Macysyn, executive director of the National School
Transportation Association, said. "I think that’s another area that’s
just common sense — whether that person works for a contract or is
in-district, where the vaccination could and should be required when
available."
Hartstein recommends school systems remain consistent in their policies
for all employees. For example, if a district mandates vaccines for
teachers, the failure to have a similar policy for substitute teachers
would undermine the mandate for staff. "A district may have more
control over the day-to-day activities of their own employees, and
taking additional steps to safeguard its premises in bringing third
parties on site may still be justified," he said.
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