As independent schools begin welcoming faculty, staff, and students back to campus, COVID-19 health and safety policies continue to be top of mind. For those schools that have not already implemented a mandatory COVID-19 vaccination policy for staff, students, or both, the surge of COVID-19 cases caused by the Delta variant and the Food and Drug Administration's (FDA) recent full approval of the Pfizer-BioNTech vaccine may sway such schools to adopt a COVID-19 vaccination policy now. Schools considering a COVID-19 vaccine mandate should consider the following issues as they develop their policies.
Written COVID-19 Vaccination Policy
Schools that are requiring the COVID-19 vaccine—for employers, students, or both—should ensure that there is a written policy in place outlining the process for vaccination, including a deadline by which individuals must be fully vaccinated. The policy should also include a procedure for requesting any exemptions that the school is required to consider pursuant to federal, state, and local laws. The policy should also address any paid leave options available to employees who require time off from work to get vaccinated and to recover from any side effects of the vaccine. Finally, schools should describe the procedure for submitting proof of vaccination to the school.
Procedure for Medical and Religious Exemption Requests
As discussed here, schools are required by federal law to consider employee requests for medical and religious exemptions from the vaccination mandate. Similarly, schools will likely need to consider both medical and religious exemptions for students as well, depending on applicable state law. In either situation, the school's vaccination policy should describe a clear procedure for submitting such requests to the school, as well as a description of the process the school will use when evaluating such requests.
When considering medical and religious exemption requests, the school should collect information from the individual to determine whether it can accommodate the employee without causing undue hardship to the school or constituting a direct threat to another member of the school community. To streamline this process, schools would be wise to implement a consistent procedure for evaluating exemption requests, including standard exemption request forms for religious and medical exemptions that require individuals to provide basic information regarding the basis of their exemption request.
For medical exemption requests, information collected should include the specific allergy or medical condition underlying the need for an exemption and a note from the individual's physician substantiating the need for an exemption. For religious exemptions, the request form may ask the individual to provide a description of their sincerely held religious belief preventing vaccination.
Thereafter, if the individual fails to initially provide enough information regarding the basis of their exemption request or, in the case of a religious exemption request, if the school has an objective basis for questioning the religious nature or the sincerity of the individual's religious objection, the school may ask the individual to provide additional information necessary for the school to properly evaluate their request. If the individual is unable to establish the religious nature or sincerity of the objection, the school may deny the exemption request.
Types of Accommodations Available
When considering which accommodations to provide to employees with approved exemption requests, remember that the school is not required to provide the specific accommodation requested by the individual if it imposes an undue burden on the school or poses a direct threat to a member of the school community. Furthermore, accommodations need not be one size fits all; that is, some types of accommodations that may be appropriate for employees in certain job positions may not be appropriate for others. For example, a reasonable accommodation for a non-faculty employee with little or no contact with students may be permitted to return to work in person with certain restrictions in place (i.e., masking and face shields, regular PCR testing, working in an office without other employees, eating at their desk). However, for employees who work closely with young children who are not yet able to be vaccinated, returning to work unvaccinated (even with restrictions) may not be reasonable. For students, a reasonable accommodation may include regular PCR testing, eating lunch in a designated area, and restriction from participating in activities that pose a higher risk of COVID-19 transmission, such as contact sports, choir, and orchestra.
While remote work or distance learning is a common accommodation requested (and as many schools experienced last fall), it presents significant challenges for schools that are offering a 100% in-person educational program this school year. A temporary, unpaid leave of absence as an accommodation may be appropriate for employees 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 individual cannot, or will not, receive the vaccine, termination of employment for employees or disenrollment for students may be an option.
Vaccinated Status and Confidentiality Considerations
A common question employees have regarding a school's vaccination policy is what the school is permitted to do with information regarding their vaccination status. To be clear, an individual's vaccination status is not protected by Health Insurance Portability and Accountability Act (HIPAA), and the Equal Employment Opportunity Commission (EEOC) has issued guidance clarifying that asking or requiring employees to provide proof of receipt of a COVID-19 vaccine is not considered a "prohibited medical inquiry" under the Americans with Disabilities Act (ADA). Nonetheless, schools should take care when requesting proof of vaccination from employees and students and when responding to questions from the community regarding individuals' vaccination status.
Requests for Proof of Vaccination
In requesting proof of vaccination, schools should advise community members not to provide any additional medical information beyond the vaccination card as proof of vaccination. While asking whether an individual has received a COVID-19 vaccine is not a disability-related inquiry, subsequent questions could be, such as asking why they have not gotten vaccinated.
Schools should also have a plan regarding how they will respond to inquiries regarding the vaccination status of their staff and students. Generally, schools may not tell parents whether a specific teacher has been vaccinated, as state and local privacy laws typically prohibit employers from disclosing their employees' medical information. Schools should likewise treat students' vaccination status as confidential and refrain from responding to inquiries regarding a specific student's vaccination status. As an alternative, schools may consider providing information regarding the vaccination status of the community as a whole (e.g., that 99% of staff are fully vaccinated).
School-Sponsored Vaccination Clinics and Incentive Programs
While it has become increasingly clear that independent schools may require community members to receive the COVID-19 vaccine as a condition of returning to campus, subject to exemptions for medical contraindication and sincerely held religious beliefs, some schools may be reluctant to mandate vaccination, for any number of reasons. Schools that are hesitant to mandate vaccination may still consider implementing a program to encourage their community to voluntarily receive the COVID-19 vaccine.
On-Site Vaccine Clinics
To encourage and expedite employee vaccinations, some schools may partner with local pharmacies or healthcare providers to provide on-campus COVID-19 vaccination clinics. The benefit of working with a local pharmacy or healthcare providers is that they can usually bill employees' insurance for any vaccine administration fees and can report vaccine administration data to state vaccine registries. Schools considering this approach should ensure that they obtain appropriate authorization and waiver forms and a release from liability for any injury or loss arising out of the on-site vaccination clinic.
Schools holding on-site vaccine clinics should ensure that employees are compensated for the time the employees take to obtain the COVID-19 vaccine. Additionally, some states have passed laws that provide for paid leave if employees require time off to recover from side effects of the COVID-19 vaccine. Schools should prepare to assist employees with understanding their paid leave options available for this purpose.
Employee Vaccination Incentive Programs
An employee incentive program is one where employees receive an additional benefit—such as a small cash bonus, a gift card, or school merchandise—if they become vaccinated. Thus far, the EEOC has been relatively silent on the legality of employee vaccination incentive programs. However, schools that are considering vaccination incentive programs should consider the following issues.
The Size of the Incentive May Affect the Legal Risk
Under the ADA, participation in a school's wellness program must be voluntary. If a vaccine incentive program is considered a wellness program, then schools must ensure that employees do not feel coerced into participating. The greater a school's incentive, the less likely it is that the vaccine incentive would be considered a voluntary wellness program. Relatively small incentives, such as low-cost gift cards or reimbursement of transportation costs for traveling to a vaccination site, are unlikely to be considered coercive. On the other hand, substantial incentives, such as significant job advancement opportunities, are more likely to be considered coercive. Schools should also keep in mind that payments of any kind may impact non-exempt employees' regular rate of pay for the purpose of calculating overtime. Since there is no precise rule for what type of incentive may be considered voluntary versus coercive, schools are encouraged to consult with counsel when crafting a vaccination incentive program.
Accommodations for Individuals with Disabilities or Religious Objections
There are also risks if an employee cannot receive the vaccine (and thus would not qualify for the incentive) for medical reasons or because of a sincerely held religious belief. Employees who are precluded from participating in the vaccine incentive program for either of these reasons may claim they are being treated differently based upon their disability or religious practices. Schools can mitigate this risk by offering alternative ways for otherwise precluded employees to receive the incentive. For example, in lieu of a vaccination, an employer may provide the same incentive to employees who watch a COVID-19 safety video or attend safety protocol training.