New York City Mayor Bill DeBlasio is worried about September.
“September is when many employers are bringing back a lot of their employees,” he told reporters at the end of July. “September is when school starts full strength. September is when people come back from the summer.”
That’s why DeBlasio has mandated the entire municipal workforce -- including all employees of the nation’s largest school district -- get vaccinated against COVID-19 by September 13 or start weekly testing for the virus. California recently became the first state to mandate vaccines or regular testing for educators. Denver will also require all K-12 staff, as well as other city employees, to be vaccinated or stop working by the end of September.
Similar policies are being considered in other municipalities. Here’s what you need to know:
What Are the Unions Saying About Vaccine Mandates?
A few months ago, most school unions were firmly pro-vaccine but formly anti-vaccine mandate. The situation has become more complicated.
Recently, Randi Weingarten, president of the American Federation of Teachers, the nation’s second largest teachers’ union, told NBC News' "Meet the Press" that she supports requiring vaccinating teachers, reversing her previous stance. “The circumstances have changed,” she said. “It weighs really heavily on me that kids under 12 can't get vaccinated.”
Meanwhile, the National Education Association, the largest teachers’ union in the U.S., continues to favor voluntary vaccination. “No one wants to be back in the classroom full-time more than educators, and you can see that in the nearly 90 percent of our members who report being vaccinated,” NEA President Becky Pringle said in a statement emailed to Tech & Learning. “We've always supported vaccinations; we've always recommended following the science and the CDC guidelines. But there are often complex medical issues at play, and we don’t presume to understand them all. That's why we've also encouraged districts to collaborate and, where able, bargain with educators and their unions so that all educators and students can be safe and appropriate accommodations made.”
She added, “Educators must play an active role in developing any mandates or systems in schools, colleges, and universities, to protect our students and educators, and those systems should include vaccination, testing, tracing, masking, distancing, handwashing, ventilation, and sanitizing — to ensure that students and educators are able to look forward to safe, uninterrupted, in-person education."
Are Vaccine Mandates for K-12 Legal?
It depends on the state.
“Several states have proposed or enacted laws that prevent mandating COVID-19 vaccines or prevent requiring proof of vaccination. Some of these laws apply to teachers and other school employees,” says Stacie Kershner, J.D., Associate Director Center for Law, Health & Society at Georgia State University College of Law. “Some of these laws go a step further and prevent requiring unvaccinated individuals to take other measures not required of vaccinated individuals.”
According to the National Academy for State Health Policy, 15 states, including Florida, Arizona, Ohio, and Alabama, have passed legislation prohibiting vaccine mandates and passports.
Federally, vaccine mandates are legal. In May, the U.S. Equal Employment Opportunity Commission released a guidance clarifying that the COVID vaccines currently approved under emergency use authorization would be treated the same as other vaccines.
“Legally they can mandate as long as they have the similar protections in place with regard to individuals who are unable to be vaccinated due to religious or medical reasons,” says Renee C. Mattei Myers, an attorney who specializes in discrimination law.
Many colleges, private schools, and businesses have enacted vaccine mandates, but public K-12 schools are more complicated due to union contracts as well as school board and community involvement in the decision making process. “There's union contract terms that have to be dealt with and followed,” Myers says. “There's the public perception. So each school district is going to be different, it depends on its constituency. What are the demographics of our employees, and our students? There's going to be a lot of pushback, both ways. We saw that last year with mask mandates.”
What About Legal Challenges
“There is a long history -- more than a century -- of legal support for vaccine mandates,” Kershner says. “All states have childhood vaccination requirements to attend school, and all states have medical exemptions. Forty-four states also offer religious or philosophical exemptions to vaccines for school attendance.”
She adds, “While vaccination mandates for school employees are less common than mandates for students, they may be more important for COVID-19 where children may have lesser symptoms, but could spread the disease to teachers and other staff.”
A federal judge recently upheld Indiana University’s policy of requiring student vaccination after eight students sued the university. Other early challenges to vaccine mandates have also failed. Kershner suspects K-12 vaccine mandates will also withstand legal challenges. “It is important to remember that the mandates we are seeing are not necessarily a choice between vaccination and losing a job,” she says. “In many cases the mandates are ‘soft’ – the choice is between vaccination and wearing a mask and/or submitting to regular COVID-19 testing. So far it looks like federal courts have upheld these soft mandates.”
Can Parents Request Vaccinated Teachers?
“While employers are allowed to ask for vaccine status or proof of vaccination, they must keep their employees’ medical information confidential,” Kershner says. “In general, this means that schools may not disclose vaccine status of individual teachers to children’s parents. However, reporting aggregate vaccination rates are generally allowed.”