As COVID-19 vaccines become available, there are questions about whether schools can make it mandatory for their students or staff to get vaccinated.
Both Moderna and Pfizer have created COVID-19 vaccines approved for “emergency use” in the United States. Both vaccines had about 30,000 participants during their trials, and millions of health-care workers will be vaccinated before educators get a turn.
The National Education Association has urged federal, state, and local authorities to prioritize educators for early vaccine access, but it needs to be done in a safe and equitable way.
The U.S. Equal Opportunity Commission has issued guidance stating that employers are able to require workers to get a COVID-19 vaccine, with exemptions for workers with certain medical conditions or religious beliefs. (EEOC Issues Updated Covid-19 Technical Assistance Publication | U.S. Equal Employment Opportunity Commission).
Unlike private employers, public employers only have authority to impose specific requirements given to them by law. Teachers are already subject to the requirement for physical examinations and are barred from teaching if they have certain communicable diseases such as tuberculosis. As of now, there are no specific requirements that teachers be vaccinated for COVID as a condition of employment. However, it is not unprecedented for the United States to mandate vaccines as a prerequisite for attending public schools. As early as 1905, the Supreme Court held, in Jacobson v. Massachusetts, a state can make vaccines mandatory, and subject individuals not in compliance to a criminal fine. The Supreme Court broadly held a state can impose ‘reasonable regulations’, even if the regulation interferes with individual rights, in order to protect the health and safety of the public.
Assuming that schools would be allowed to mandate the COVID vaccine for employment, school districts must be prepared to reasonably accommodate their employees who either cannot, or will not, be vaccinated for medical or sincerely held religious reasons.
Specifically, the EEOC recommends employers to use an individual assessment to determine whether a direct threat exists. A ‘direct threat’ means an unvaccinated employee will expose others to the virus at the workplace.
The guidance also explains that if an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk to others. In cases where a direct threat cannot be reduced, an employer may exclude the employee from the physical workplace, but that does not mean an employer can automatically terminate the worker.
Inevitably, issues regarding students and the COVID vaccine will arise as well.
It is highly likely there will be a significant amount of time between when the vaccine is available to teachers and when it becomes available to students. Additionally, issues and questions concerning medical and religious exemptions from the vaccine will also come into play, for example, can you require a student to take virtual classes if they are unable to get the COVID vaccine due to a medical or religious reason?
Whereas immunization for a variety of diseases such as diptheria and measles is required for students in public or non public schools, COVID vaccinations do not yet appear on the list. Non COVID-vaccinated students cannot yet be barred from enrollment. Whether they can be required to attend classes remotely remains an open question.
Schools sports and extracurricular activities have been a hot topic throughout Pennsylvania school districts’ mitigation efforts. High contact sports such as wrestling and football pose a potential threat to the health and safety of participants, their families, and their surrounding communities. Schools may have more latitude in requiring vaccinations for students participating in extracurricular activities. In 1995, in Vernonica School District 47J v. Action, the U.S. Supreme Court held random drug testing of student athletes by public schools was constitutional. Veronica posits a lesser expectation of privacy for students in sports and extracurriculars. This, together with the notion that participation in sports and extracurriculars is a privilege, not a right, may provide a legally-defensible avenue for schools to require vaccination for extracurricular participation.
Bottom Line for Schools
Until there is more guidance, regulations, or legislation, schools can be encouraged to (1) educate staff about the importance and relative safety of vaccinations, (2) consider some kind of incentive program for those who do get vaccinated. Although not recommended for public schools, some employers of essential personnel are giving cash bonuses for vaccination.
Although monetary awards are not practical for a number of reasons, schools might want to consider non-monetary incentives or recognition, even something as simple as a pin, charm, or sticker that says “I was vaccinated.”
If you have a question, please contact your legal counsel or one of the Education attorneys at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.