Vaccination Guidance for Educational Employers

01.08.2021

Consistent with recommendations from the Federal Advisory Committee on Immunization Practices (ACIP), California’s Community Vaccine Advisory Committee has advised — and Governor Newsom has confirmed — that employees in the education sector, including K-12 and community college personnel, will be included in vaccine priority Group 1b (Tier 1), and will, therefore, be eligible to be vaccinated immediately following vaccination of Group 1a (which includes front-line health care workers and long term care facility residents and staff). As a result, school and college personnel are expected to be eligible for vaccination starting as early as January 2021. (see https://covid19.ca.gov/vaccines/)

Specifics of the vaccination process have not been fully clarified, but it appears vaccine priority may be limited to those “at risk of exposure at work” (see https://covid19.ca.gov/vaccines/), and, thus, it is not entirely clear whether vaccination will extend to employees working solely from home. In this regard, we note that some employees currently working at home may consider a return to work after being vaccinated. On a related note, Governor Newsom (on December 30, 2020) has unveiled a proposed “Safe Schools for All Plan,” which seeks to facilitate greater in-person instruction, starting as early as February 15, 2021 for students in grades TK-2. (AALRR will be issuing an ALERT on the Safe Schools for All Plan shortly.)

At present, schools and colleges continue to face significant safety concerns arising from the current high infection rates, lack of ICU capacity in hospitals, and a new (and apparently more infectious) variant of the Coronavirus. As vaccination rates increase, however, infection rates will decline, and safety concerns will begin to alleviate. Thus, the rate of vaccination, both within the campus community and the community at large, will directly influence the extent to which schools/colleges can safely expand rates of in-person instruction.

In light of these factors, educational employers may wish to consider, consistent with State and local public health guidelines: (1) whether vaccines can be mandated for employees; and (2) the extent to which vaccine policies are subject to collective bargaining.

A. VACCINE MANDATE AND EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) GUIDANCE

As the State’s vaccination program has begun to roll out, a number of eligible individuals have declined the opportunity to be vaccinated. It also appears unlikely that a Statewide mandate will be implemented, at least in the current school year. This leaves to individual employers the decision whether or not to mandate vaccination. This topic, including significant EEOC guidance, is discussed immediately below.

On December 16, 2020, the EEOC updated its COVID-19 guidance to address the availability of COVID-19 vaccinations, and related issues arising under the Americans with Disabilities Act (ADA), Title VII, and other EEO laws.

The ADA, as a general rule:

requires an employer to provide reasonable accommodation to a qualified employee with a disability;
does not require accommodation that would pose an “undue hardship” on the employer;
limits medical examinations and other disability-related medical inquiries of employees to those that are “job-related and consistent with business necessity;”
permits an employer to exclude an employee from the workplace if, based on objective medical evidence, the employer has a reasonable belief that, due to a medical condition, the employee’s presence in the workplace would pose a direct threat to health or safety; and
requires that employers keep employee medical information confidential.

Title VII prohibits, among other things, employment discrimination based on religion, and requires reasonable accommodation of an employee’s sincerely-held religious belief, practice or observance, unless to do so would pose an “undue hardship” on the employer. (The Title VII “undue hardship” standard is more lenient towards employers than that of the ADA.)

The Genetic Information Nondiscrimination Act (GINA) prohibits employment decisions based on an employee’s “genetic information,” as defined, and limits employer inquiries and disclosures regarding such information.

The EEOC guidance discusses application of these general principles to employer policies requiring employees to be vaccinated against COVID-19, and indicates that, in the view of the EEOC:

If the employer itself administers a COVID-19 vaccine to employees (or does so through a contracted third-party provider), this is not, in and of itself, a “medical examination” and therefore does not implicate the ADA’s limits on such examinations.
If the employer asks or requires employees to show proof of receiving a COVID-19 vaccination, this is not, in and of itself, a “disability-related medical inquiry,” and therefore does not implicate the ADA’s limits on such inquiries. However, follow-up questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to ADA restrictions. Further, any request or requirement for employees to provide proof of receiving a vaccine should make clear that employees are not required to disclose any underlying medical diagnosis or condition.
Pre-vaccination medical screening questions (to determine if there is a medical reason why a person should not receive the vaccine) are likely to elicit disability-related information, and therefore are subject to ADA limitations on disability-related medical inquiries, if conducted by the employer itself (or a contracted third-party provider) in connection with an employer-required vaccination. In contrast, however, if an employer offers vaccination to employees on a purely voluntary basis, or if an employee receives a vaccine from a third party not affiliated with the employer (such as the employee’s pharmacist), ADA restrictions on medical inquiries would not apply. For this reason, employers may wish to give strong consideration to EITHER not self-administering vaccination programs, OR working with legal counsel in designing such programs so as to avoid running afoul of the ADA.
It does not necessarily violate the ADA for an employer to establish a safety-based qualification standard generally requiring that employees be vaccinated against COVID-19 so as not to pose a “direct threat” to the health or safety of individuals in the workplace. If, however, an individual employee requests exemption for disability-related reasons, this will require the employer to engage in an individualized assessment and interactive process to determine whether a particular unvaccinated employee’s presence in the workplace would pose a direct threat, taking into consideration all relevant circumstances, including but not necessarily limited to the nature of the workforce, the employee’s position and contact with others, and the prevalence in the workplace of other employees who have already been vaccinated. If the employer nevertheless determines that a direct threat exists, the employer must consider other reasonable accommodations that may enable the employee to continue working and/or to return to work at a later time, including, for example telework, or leave of absence.
An employer requirement that employees be vaccinated against COVID-19 does not, in and of itself, implicate GINA. However, pre-vaccination medical screening questions, if conducted by the employer or by an employer-contracted third party, may implicate GINA’s restrictions against inquiries and disclosures regarding employee “genetic information,” which is defined to include not only information about genetic tests, but also family medical history.
If an employee requests exemption from an employer policy requiring vaccination against COVID-19 for reasons related to the employee’s religious beliefs or practices, Title VII may require the employer to accommodate the request, unless to do so would pose an “undue hardship.” Under longstanding Title VII precedent, an “undue hardship” exists if the requested accommodation would pose more than a “de minimis” cost or burden on the employer. (In contrast, under the ADA, an employer claiming “undue hardship” in response to a request for disability accommodation must establish that the requested accommodation would entail “significant difficulty or expense.”)
Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.

The EEOC’s guidance addresses only whether employer policies requiring employees to be vaccinated are permissible under federal EEO laws. The EEOC’s guidance does not, however, address the more fundamental question of whether California school districts, county offices of education, and community college districts even have authority in the first place to adopt such policies.

Courts have long upheld against constitutional challenge state laws requiring mandatory immunization for school children as a condition of enrollment. E.g., Brown v. Smith (2018) 24 Cal.App.5^th 1135. At the present time, the California Legislature has yet to adopt any laws specifically requiring that school or college employees or students be vaccinated against COVID-19. Nor, at the present time, has the California Department of Public Health (CDPH). School and community college district governing boards, however, have general authority to “initiate and carry on any program, activity, or […]otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which [such] districts are established.” (Educ. Code §§ 35160, 70902.) In the absence of any uniform standards for such policies at the state level, this general grant of authority would at least arguably permit school and community college districts to adopt policies requiring employees to be vaccinated against COVID-19 as a measure to protect student and employee health and safety, subject to EEO laws and collective bargaining obligations (discussed below). Public education employers should, however, be prepared to revisit any such policies if and when the Legislature and/or CDPH act to address this issue.

As students are not yet eligible to be vaccinated, and no vaccines are currently available for individuals under age 16 in any event, it may be premature to consider vaccine requirements for students. When vaccines are more widely available, including for students, the Education Code grants specific authority to school and community college districts to take measures to exclude students suffering from infectious or contagious disease. (Educ. Code §§ 49451, 76020). Interestingly, Education Code section 49405 specifically prohibits the adoption of any local school district rule or regulation on the subject of vaccination for smallpox, but mentions only that particular disease and not any other. The Education code additionally grants districts authority to establish immunization programs administered by qualified health professionals, subject to specified conditions. (Educ. Code §§ 49403, 76403.) However, the Education Code notably does not grant specific authority for school and community college districts to establish their own vaccination requirements for students on a local level. Moreover, existing provisions of the Health and Safety Code and implementing regulations extensively regulate immunization requirements and exemptions for preschool and K12 students, but do not address COVID-19. Whether such existing laws preempt local district policies establishing additional requirements for student immunization has not been addressed by California courts in any published opinion, and may require specific forthcoming legislation.

School employers who may be considering adopting policies requiring employees and/or students to be vaccinated against COVID-19 are advised to consult with legal counsel.

B. COLLECTIVE BARGAINING OBLIGATIONS

Implementation of vaccination programs, including any mandatory vaccination policies, will likely trigger bargaining requests from union representatives. To the extent K-12 employers and community college employers seek to increase in-person instruction and operation (for example, by implementing the Governor’s Safe Schools for All Plan for K-12 employers) in connection with a vaccine mandate, additional bargaining implications may arise.

The Educational Employment Relations Act (EERA) requires public employers to bargain over mandatory subjects of bargaining, as well as non-negotiable decisions which may have reasonably foreseeable effects on negotiable subjects. Public employers risk violating the EERA if they take unilateral action that would (i) change a matter within the scope of representation, or (ii) involve non-negotiable matters, yet affect negotiable subjects. Hours of employment, leaves, employee safety, and salary are among the mandatory subjects of bargaining that might be impacted by a mandatory vaccination policy. As a result, employers should anticipate, at the very least, a demand to bargain a mandatory vaccination policy.

There is a colorable argument that the decision to implement a mandatory vaccination policy is not negotiable, while the impacts and effects of the decision are negotiable. In some circumstances, Public Employment Relations Board case authority analyzing the EERA permits an employer to implement its decision prior to completing negotiations if it has an immutable implementation deadline and gives notice and an opportunity to bargain to the unions prior to implementation. Additionally, in certain limited cases, school and community college districts may be able to rely on collective bargaining agreement management rights clauses to implement a mandatory vaccination policy prior to completing negotiations with the union, provided they have reserved the right to do so.

These are novel issues. Districts are strongly encouraged to check with their legal counsel prior to implementing any new policy with respect to vaccination.

If you have any questions regarding this Alert, you can contact the authors or your regular attorney at Atkinson, Andelson, Loya, Ruud & Romo.