Covid-19 Vaccines and School District Employees

As COVID-19 vaccines are approved and distributed, public school districts must determine whether they will impose any rules governing employees and the COVID-19 vaccine.  This Legal Update will review the legal issues surrounding such decisions.  This Legal Update will not address the laws governing the administration of the COVID-19 vaccines to students.

In December 2020, the U.S. Food and Drug Administration (FDA) issued an Emergency Use Authorization (EUA) for the COVID-19 vaccines developed by Pfizer and Moderna.  Shortly thereafter, the companies began widespread distribution of the vaccines to individual states.  However, the first shipments were not sufficient to allow for everyone who wanted a vaccine (or who wanted their employees to be vaccinated) to receive the vaccination.

The U.S. Advisory Committee on Immunization Practices (ACIP) and the Wisconsin State Disaster Medical Advisory Committee (SDMAC) issued COVID-19 vaccine prioritization guidelines.  The Wisconsin Department of Health Services (DHS) has announced they will be following these guidelines.

Wisconsin is presently in Phase 1A of the vaccine prioritization guidelines, which means that COVID-19 vaccinations are only available to frontline health care providers and skilled nursing facility staff and residents.  As Wisconsin’s vaccine supply increases, DHS intends to offer available COVID-19 vaccines to other health care personnel and long-term care facility residents and staff before moving to Phase 1B.  

During Phase 1B, DHS intends to offer available COVID-19 vaccines to persons aged 75 and older and non–health care frontline essential workers, which includes first responders (e.g., firefighters and police officers), corrections officers, food and agricultural workers, U.S. Postal Service employees, manufacturing workers, grocery store employees, public transit workers, and those who work in the education sector (teachers and support staff members), as well as child care workers.

It is not yet clear when Wisconsin will move to Phase 1B.  DHS has suggested that Phase 1A may take several months if the COVID-19 vaccine supply does not increase substantially.  There are also discussions at the federal level about taking steps to release all available vaccines to the individual states.  It is also possible that the approval of the use of additional vaccines (e.g., AstraZeneca, Janssen, Novavax) may increase the COVID-19 vaccine supply available to Wisconsin residents.

At this time, there is no law requiring any persons, including those who work in the education sector, to get the COVID-19 vaccine.  It is possible a law will be enacted at the state or federal level to require persons, who work in certain sectors, to get the COVID-19 vaccine.  Alternatively, it is also possible that a law will be enacted or an administrative agency will promulgate a rule or regulation to mandate that public (and perhaps private) schools must require school employees to get the COVID-19 vaccine or face the loss of federal or state funding.

Some attorneys have cautioned employers against mandating the COVID-19 vaccine as a condition of continued employment because of the emergency authorization status of the COVID-19 vaccines.  Under the laws permitting emergency use of the vaccines, any individual offered a COVID-19 vaccine must be notified that the vaccine is voluntary and that the individual has a right to refuse it.  However, the emergency use laws do not explicitly address an employer’s ability to mandate the COVID-19 vaccine as a condition of employment.  As such, it is not clear that the emergency authorization status of the COVID-19 vaccines has any impact on a school district employer’s decision to require the COVID-19 vaccine as a condition of continued employment.

What is clear is that once we move into Phase 1B and the COVID-19 vaccine is available to those who work in the education sector (teachers and support staff members), school districts will need to determine whether to adopt a policy that requires employees to get the COVID-19 vaccine as a condition of continued employment, to encourage employees to get the COVID-19 vaccine, or to avoid taking a position regarding the COVID-19 vaccines and to leave the vaccination decision to the individual employee. 

On December 16, 2020, the U.S. Equal Employment Opportunities Commission (EEOC) issued an updated COVID-19 Technical Assistance publication to address questions arising under the laws related to the COVID-19 pandemic, including COVID-19 vaccines.  Generally speaking, the EEOC explained:

• The administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) is NOT a “medical examination” for purposes of the Americans with Disabilities Act (ADA).
• Pre-vaccination medical screening questions are likely to elicit information about a disability.  This means that such questions, if asked by the employer or a third party on the employer’s behalf, are “disability-related” under the ADA.  Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.
• Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry.
• If an employer requires employees to get the COVID-19 vaccine as a condition of continued employment and an employee refuses to do so due to a disability or a sincerely held religious belief, the employer may be able to terminate the employee if the employer can show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

If a school district intends to require its employees to get the COVID-19 vaccine as a condition of continued employment, it is advisable for the school district to adopt a policy or issue a written directive to articulate the specifics of the rule, including a deadline, how, if at all, the employee will demonstrate that he/she has been vaccinated, and the consequences for failing to secure a vaccination.  The policy or written directive should address how the school district will deal with requests for exemptions and how the school district will preserve and protect the confidentiality of vaccination records to the extent permitted by law. 

If a school district intends to encourage employees to get the COVID-19 vaccine, but not to require the vaccine as a condition of continued employment, the school district may still need to adopt a policy or rule to address recordkeeping if the school district intends to collect information from employees regarding COVID-19 vaccinations. 

Finally, school district administrators may want to reach out to their health insurance carriers, health insurance consultants, local health care institutions and clinics, and other wellness vendors to explore whether these entities will be offering or facilitating COVID-19 vaccination events for school district employees and if the school district could receive any benefit (i.e., rebate, premium credit, etc.) for hosting such an event.