Even if schools can mandate vaccine, they may not
The Osborn School District in Phoenix is urging its teachers to get COVID-19 vaccines, even offering information on where to get shots on designated workdays.
About 90% of the pre-K-8 district’s staff have gotten at least their first dose, school officials say. Osborn, which has been virtual all year, plans to return to in-person instruction in March.
But what about the 10% of employees who haven’t gotten the vaccine? Can the district require them to? Osborn’s board members have discussed it, but there’s a number of reasons why districts probably won’t be requiring COVID-19 vaccines for employees anytime soon.
Legal rules aside, it would be difficult to require something in high demand and short supply. The bigger problem nationally is many teachers want the vaccine but can’t get it. Brent Pearson, a language arts teacher at Eureka High School near St. Louis, scoured vaccination sites, even considering taking two personal days to drive to a far-flung part of the state for an appointment (it fell through).
The Rockwood School District, where Pearson works, has been open for inperson instruction since November. Like other districts, staff and students have faced multiple rounds of quarantine because of illness or exposure.
Erika Kitzmiller, an education professor at Barnard College in New York City, said most of the teachers she talks to are desperate to get the vaccine. They want to protect not only themselves but also their families, their students and their students’ families. But many cannot find appointments in their communities, Kitzmiller said.
“They are understandably worried about teaching in-person without it,” she added.
About half of states have prioritized teachers for vaccines. Kentucky rushed to offer vaccinations to about 83,000 school employees who said they wanted it. Oregon’s governor prioritized teachers over the elderly for vaccines, al
though that still didn’t result in overwhelming numbers of classrooms reopening, largely because of teachers union fears about safety.
Ohio Gov. Mike DeWine offered districts a deal: If they wanted early access to the vaccine for employees, they had to promise to reopen for at least some classroom instruction by March 1. But there has been no talk of discipline for any that don’t. Akron Public Schools pushed back its reopening date to March 22 so all teachers who want the vaccine can receive both doses.
The CDC’s recommendations
New guidance on schools from the federal Centers for Disease Control and Prevention did not call for all teachers to be vaccinated as part of the strategy to reopening buildings. Instead, the guidance said schools could reopen safely for at least some in-person learning, even amid moderate levels of community transmission, by faithfully wearing masks, keeping some physical distance and following other mitigation strategies.
President Joe Biden’s administration has said teachers should be prioritized for vaccines, but it’s possible to open K-8 schools this semester without them. Biden clarified at a town hall meeting in Milwaukee that the goal is to open most K-8 schools for instruction five days a week by the end of his first 100 days in office.
Biden’s press secretary had said reopening might mean just one day a week of instruction; Biden called that a miscommunication.
Fully opening all high schools will be harder, Biden said at the town hall, because older students transmit the coronavirus more readily than younger students.
It gets complicated
Federal law would allow private employers to require employees to get COVID-19 vaccines, with some exceptions for people who have disabilities or religious exemptions. That’s according to guidance Dec. 16 from the federal Equal Employment Opportunity Commission.
It’s unclear whether schools or employers could legally require a vaccine that’s under an emergency use authorization by the Food and Drug Administration, said Dorit Reiss, a professor at the University of California Hastings College of Law.
All the vaccines most schools and employers require now, for example, have full FDA approval.
John Comegno, an attorney based in New Jersey who specializes in education law, said that while the vaccines are still under emergency use authorization, districts will defer the question of vaccine requirements.
“But when final approval is issued, and vaccines are accessible, I think that the question is going to be when to mandate the COVID-19 vaccine, and how to uphold that mandate in a consistent way.”
In other words, Comegno said, districts eventually will have to decide whether to adopt COVID-19 vaccine requirements as part of the public responsibility they have to keep students, staff and school visitors safe.
There’s so much tension between management and employees over reopening buildings that districts are likely to continue on the lightest-touch path: encouraging employees to get vaccinated.
If the vaccine were required – especially in places with strong unions – and an employee refused to get one, it could lead to a grievance and expensive litigation, said Michael Hartney, a professor at Boston College who studies teachers unions.
“The practical challenges and political pushback would make any legal mandate more trouble than it’s worth,” he said.
More teachers are eligible
The number of teachers becoming eligible for vaccines or getting vaccinated on their own is increasing daily, but recent figures are hard to find.
About 18% of teachers belonging to the largest national teachers union reported receiving a vaccination, and another 17% reported pending appointments as of Feb. 3, according to a survey by the National Education Association.
Since then, more states have announced that teachers are eligible, including Tennessee, which will make vaccines available for all educators who want one. Louisiana also just expanded vaccine priority to include educators.
Individual teachers have found other creative solutions. Some Georgia teachers have traveled across state lines to Alabama for COVID-19 vaccines, according to Georgia Public Broadcasting.
Back in Phoenix, Ed Hermes, an Osborn School Board member and parent, said the district won’t adopt a mandatory COVID-19 vaccine policy at this time because of high rates of voluntary participation. But, he said, the board might revisit the question in the fall, especially as the vaccine becomes more available and new teachers are hired.
“We will do what is best to keep our kids and community safe,” Hermes said.