March 5, 2021

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Can schools require teachers to get the COVID-19 vaccine? Probably, but most aren’t – yet.

The Osborn School District in Phoenix, Arizona is urging its teachers to get COVID-19 vaccines, even offering information on where to get shots and paid time off for inoculations. 

Around 90% of the preK-8 district’s staff have gotten at least their first dose, school officials say. Osborn, which has been virtual all year, is planning 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.

‘It’s insanity’:COVID-19 vaccines for teachers comes down to location and luck

There’s not enough COVID-19 vaccine doses available

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. Like Brent Pearson, a language arts teacher at Eureka High School near St. Louis, Missouri. He 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 in-person 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.

States have not required COVID-19 vaccines

About half of states have prioritized teachers for vaccines. Kentucky rushed to offer vaccinations to around 83,000 school employees who said they wanted it. Oregon’s governor prioritized teachers over the elderly for vaccines, although 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 re-open for at least some classroom instruction by March 1. But there’s been no talk so far of discipline for any that don’t. Akron Public Schools pushed back its reopening date to March 22 so that all teachers who want the vaccine can receive both doses.

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, 2021.

New school guidance from the Centers for Disease Control, released last week, 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. 

CDC guidance:Teacher vaccinations are not a must, 6 feet separation advised

President Joe Biden’s administration has said teachers should be prioritized for vaccines, but it’s possible to open K-8 schools in the US this semester without them.Biden clarified this week at a town hall event in Milwaukee, Wisconsin 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 previously 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 event Wednesday, because older students transmit COVID-19 more readily than younger students.

A vaccine requirement? That wouldn’t come from the federal government, experts say

Districts can require vaccines, but the COVID-19 shot is complicated

Federal law would allow private employers to require employees to get COVID-19 vaccines, with some exceptions for those with disabilities or religious exemptions. That’s according to guidance on Dec. 16 from the U.S. Equal Employment Opportunity Commission.

Fact check:Yes, employers can require that workers receive the COVID-19 vaccine

It’s unclear whether schools or employers could legally mandate 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 issue of vaccine mandates. 

“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 will eventually 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 currently 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 was required — especially in places with strong unions — and an employee refused, 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 for vaccines 

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 starting Monday. 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 issue in 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.