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Even if schools can man­date vac­cine, they may not

- Erin Richards Medical Activism · Anti-Vaccers · Society · Education · Vaccines · Alternative Medicine · Medical Treatments · Barnard College · New York City · York City F.C. · New York · Kentucky · Oregon · Ohio · U.S. Centers for Disease Control · Joe Biden · Milwaukee · United States Equal Employment Opportunity Commission · U.S. Food and Drug Administration · California · University of California, Santa Barbara · New Jersey · Boston College · Tennessee · Louisiana · Georgia · Alabama · Eureka · St. Louis, Oregon · Mike DeWine · Akron, OH · Akron Public Schools · University of California, Hastings College of the Law · Hastings College · National Education Association

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.

 ?? SARAH C. TO­BIAS/USA TO­DAY NET­WORK ?? In Ohio, mid­dle school choir teacher Sa­man­tha Speak­mon, cen­ter, gets a first dose of Pfizer’s COVID-19 vac­cine from Lick­ing County Health De­part­ment nurse Brit­tany Golds­berry, right, on Feb. 10.
SARAH C. TO­BIAS/USA TO­DAY NET­WORK In Ohio, mid­dle school choir teacher Sa­man­tha Speak­mon, cen­ter, gets a first dose of Pfizer’s COVID-19 vac­cine from Lick­ing County Health De­part­ment nurse Brit­tany Golds­berry, right, on Feb. 10.

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