On September 20, 2021, Mayor Muriel Bowser signed a mayor's order requiring that all adults who are regularly in schools and childcare center facilities in the District of Columbia be vaccinated against COVID-19 by November 1, 2021. The mayor's order expressly includes employees, contractors, interns, and volunteers working in independent schools.
Additionally, the mayor announced that all student-athletes who are eligible to receive a COVID-19 vaccine as of November 1, 2021 must be fully vaccinated before December 13, 2021 in order to be eligible to practice or compete in school-based extracurricular athletics. Independent schools are similarly required to adhere to this policy. Independent schools should take steps to ensure that they will be in compliance with the mayor's order by November 1, 2021.
Can Individuals Test in Lieu of Vaccination?
Unlike similar orders in other states that require workers to either be vaccinated or submit to weekly COVID-19 testing, this order does not permit school employees and eligible students to participate in weekly COVID-19 testing in lieu of receiving the vaccine, unless they have a medical or religious exemption. In other words, only those individuals who seek and are approved for a medical or religious exemption from vaccination may submit to weekly testing in lieu of vaccination. Adults who do not submit their vaccination record in a timely manner and are not otherwise exempt for religious or medical reasons must be excluded from school and may not have contact with children until they have a received a full course of vaccination. Student-athletes who do not submit their vaccination record in a timely manner and are not otherwise exempt for religious or medical reasons may not be permitted to train, compete, or otherwise participate with their teams until they have been vaccinated.
How Should We Respond to 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 need to consider both medical and religious exemptions for student-athletes as well. In either situation, the school's vaccination policy should describe a clear procedure for individuals to follow to submit exemption requests to the school, and 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 posing 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 collection forms should include questions regarding 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.
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 religion-based objection, the school may ask the individual to provide additional necessary information so that the school can 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.
How Can We Accommodate Exempt Individuals?
Pursuant to the mayor's order, schools must allow any person with an approved medical or religious exemption to report to work in person or participate in school-based athletic activities, subject to the following conditions:
- The individual must wear a mask at all times while on campus or during participation in extracurricular activities, even if the District of Columbia's indoor masking order is rescinded or superseded; and
- The individual must be tested weekly for COVID-19 and must provide a negative COVID-19 test result to the school on a weekly basis to continue reporting to work or participating in school-based athletic activities.
Does My School Need a Written Vaccination Policy?
The mayor's order requires independent schools to adopt policies that reflect the requirements of the order. Policies should include:
- The deadline by which individuals must submit proof that they are fully vaccinated;
- The process for requesting medical and religious exemptions, as well as the standards for such exemptions as reflected in the mayor's order; and
- 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.
Schools are expected to collect and retain documentation of vaccination status, as well as any approved exemptions and records of COVID-19 testing performed by those who are on approved exemptions. Note: Schools should be prepared to make their COVID-19 vaccination policies available to the Office of the State Superintendent of Education upon request.
What If Parents Ask About Vaccination Status?
Finally, schools should have a plan for 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).
Independent schools with questions about the DC COVID-19 Vaccination Mandate are encouraged to contact Caryn Pass, Grace Lee, Janice Gregerson, or Ashley Sykes for assistance.
The authors are grateful for the contributions of Imani Menard, a law clerk in Venable LLP's District of Columbia office.