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." The guidance also notes, "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."
During the week of February 1st, we will begin to vaccinate our school personnel. This week we are sending forms to be signed by superintendents - we are asking them to agree to go back to full in-person or hybrid learning by March 1st. That is a condition of getting the vaccine.— Governor Mike DeWine (@GovMikeDeWine) January 7, 2021
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.
Correction: In a previous version of this article, a piece of guidance on COVID-19 vaccination requirements wasn't clearly attributed.