Now that COVID-19 vaccines have arrived, schools are asking themselves: Can we require our employees and students to be vaccinated when the vaccine becomes more readily available?
Can Schools Require Employees to Be Vaccinated?
The U.S. Equal Employment Opportunity Commission (EEOC) has published new guidance aimed at helping employers, like independent schools, tackle the wave of inquiries and issues that will arise once vaccinations become widely available. In short, the EEOC's new guidance says yes, schools can mandate that their employees be vaccinated, subject to some potential exceptions relating to compliance with disability and religious antidiscrimination and accommodation laws.
Keep in mind that the EEOC's guidance reflects the EEOC's current views on the application of federal antidiscrimination laws, not state or local laws, which may differ. Furthermore, the EEOC's guidance may change as vaccines become more widely available and as a new administration takes over.
Disability Accommodations
If an employee has a disability that prevents them from being able to safely receive the COVID-19 vaccine, schools should consider their obligations under the Americans with Disabilities Act (ADA) and state or local law. The EEOC takes the position that the school must determine whether the unvaccinated employee poses a direct threat to the health and safety of other employees or others on campus. Notably, the EEOC does not opine on when, in the context of COVID-19, an unvaccinated employee might not pose such a threat, except to generally note that a direct threat "would include a determination that an unvaccinated individual will expose others to the virus." Nor does the EEOC provide guidance as to what conditions, if any, would affect an employee's ability to safely receive the vaccine. In any event, schools should request employees to provide medical documentation supporting their inability to receive the COVID-19 vaccine.
Assuming the employee has provided medical documentation that demonstrates they cannot safely receive the vaccine, the EEOC explains that the school should determine whether it can accommodate the employee without resulting in undue hardship (meaning, for ADA purposes, "significant difficulty, burden or expense") to the school. While remote work is a common accommodation requested (and as many schools experienced last fall), it presents significant challenges for schools that need employees to be on campus to provide their educational program. A temporary, unpaid leave of absence as an accommodation may be appropriate in some circumstances, but the ability of the school to provide this accommodation should be revisited at a predetermined time (for example, at the conclusion of a semester). Additionally, if no reasonable accommodation is available and the employee cannot, or will not, receive the vaccine, termination of employment is an option.
Religious Accommodations
Schools may also receive requests from employees who seek to be exempted from vaccination based on sincerely held religious beliefs or practices, which may implicate Title VII of the Civil Rights Act of 1964 and state or local law. If a school learns that an employee seeks an exemption from vaccination because of a sincerely held religious belief or practice, the EEOC states that the school should try to reasonably accommodate the religious belief unless the accommodation would pose an undue hardship (meaning, for Title VII purposes, "more than a de minimis cost or burden" to the school).
The EEOC also reaffirms that schools are not required to automatically accept the legitimacy of an employee's claimed religious objection. If a school has an objective basis for questioning either the religious nature or the sincerity of the employee's religious objection, the school may request that the employee provide additional supporting information. If the employee is unable to establish the religious nature or sincerity of the religious objection, the school may deny the accommodation request, and require the employee to either receive the vaccine, or separate employment.
Proof of Vaccination Is Permitted
Subject to these two exceptions, the EEOC's position is that schools may require an employee to receive a vaccination that the school administers or to provide proof of receipt of a COVID-19 vaccination. Schools should be careful about the scope of any pre-vaccination screening questions (if school-administered) or their information request (if requiring proof of vaccination), to avoid eliciting unnecessary disability-related information.
Can Schools Require Students to Be Vaccinated?
State-Mandated Vaccination
The COVID-19 vaccine has not yet been approved for use in children, though both Pfizer and Moderna are conducting clinical trials for younger children. Ultimately, when the vaccine is approved for use in children, it will be up to the individual states to determine whether the state will mandate that a student receive the COVID-19 vaccine to attend school. Should any state mandate the COVID-19 vaccine for school attendance, parents may still seek to assert that their children are exempt from vaccination, based on any state-recognized exemptions from vaccination. While all fifty states recognize a medical exemption for vaccination for school entry, some states also recognize a religious exemption and/or a philosophical exemption. Should the COVID-19 vaccine be mandated by state law for school entry, schools will want to carefully consult their state's law to understand the exemptions permitted and information parents must provide to obtain the exemption.
School Policy
Assuming a state does not mandate the COVID-19 vaccine for school attendance, may independent schools still require the COVID-19 vaccine as a matter of school policy? To do so, first carefully consult state law to determine whether the school is prohibited from requiring additional vaccines. If the school is not prohibited from requiring additional vaccines, consider whether the school should require the COVID-19 vaccine as an additional COVID-19 mitigation measure, taking into account the availability of the vaccine and a number of other factors, including recommendations by infectious disease practitioners, the American Academy of Pediatrics, the Centers for Disease Control and Prevention, state and local departments of health, as well as any other concerns particular to your school community.
Schools that require the COVID-19 vaccine as a mitigation measure should still be prepared for challenges from parents who assert that their child cannot receive the vaccine because of a disability or underlying medical condition. Federal law (Title III of the ADA) and state or local law may require the school to provide an accommodation for a student who cannot receive the COVID-19 vaccination. It is important to understand whether your school is covered, and the process the school must follow to determine whether it must offer accommodations and what forms of accommodations it must offer.
Similarly, parents may also seek to assert that their child cannot receive the vaccine for religious reasons. Schools would be well advised to ascertain whether state or local law requires the school to provide such religious accommodations, as well as the process to follow.
Schools should consider updating their existing enrollment contracts and relevant health and safety policies for employees and students to ensure that they provide the school with flexibility to require and enforce any additional vaccination requirement. The Venable Independent School Law team will continue to monitor the latest developments on the COVID-19 vaccine. If you have any questions please contact Caryn G. Pass, Grace H. Lee, Janice P. Gregerson, or Ashley E. Sykes.