Even though the world is still in the throes of the virus, most U.S. schools were back to business— until the Omicron variant and staff shortages caused shutdowns again n many major U.S. cities. Other schools have been open for in-person learning since the beginning of the school year, and emergency use authorization of Pfizer’s COVID-19 vaccine is now approved for children as young as 5 years old. Every new variant of the virus raises questions about vaccinations and how best to mitigate spreading the virus among workforces. Vaccine mandates for school staff, which typically includes school bus operators, are increasingly common, and mask requirements continue despite vaccination status.
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As part of his COVID-19 Action Plan, President Joe Biden called on states to make vaccinations mandatory for teachers and school staff. As of this writing, nine states (CA, CT, HI, IL, NJ, NM, NY, OR, and WA) and the District of Columbia and Puerto Rico have vaccination requirements for K-12 school staff, including bus drivers. Last July, California was the first state to announce that it would require all state employees to get the “jab” or submit to regular testing. New York also requires bus drivers to submit to weekly COVID-19 testing, unless they show proof of vaccination, and requires masks be worn on buses regardless of vaccination status.
Biden’s COVID-19 Action Plan also tasked the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) with developing a rule requiring certain employers with more than 100 workers to implement “vaccine-or-test” policies. On Nov. 5, OSHA published its Emergency Temporary Standard (ETS) implementing the president’s vaccine mandate by requiring covered employers with 100 or more employees to develop policies either to mandate COVID-19 vaccinations for all employees or allow employees the option to undergo weekly testing and wear a face covering at work rather than be vaccinated.
However, 27 states and other parties sued to block the rule from taking effect, and a federal court put the OSHA vaccine-or-test mandate on hold temporarily. On Dec. 17, a federal appeals court overturned the stay, and OSHA acted quickly to set a Jan. 10 deadline for employers to comply with the ETS rule. Then, on Jan. 13, the U.S. Supreme Court reinstated. the temporary hold on the ETS rule, pending further review before the U.S. Court of Appeals for the Sixth Circuit. That prompted OSHA on Jan. 25 to withdraw the ETS as it focuses “on a permanent COVID-19 health standard.”
The Supreme Court’s decision does not affect COVID-19 vaccination and testing requirements at the state and local levels that are mandated independent of what OSHA attempted to do. The first thing that school transportation companies need to do is determine if they are covered by such a requirement. Some jurisdictions already have adopted vaccine mandates without a testing/masking alternative except for those with a bona fide medical or religious exemption.
For example, workers in New York City who perform in-person work must show proof of vaccination. Under the NYC order, businesses may not allow any unvaccinated workers including employees and independent contractors—to come to their workplace. A workplace is considered any location—including a vehicle—where work is done in the presence of at least one other person.
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While school bus operators in NYC are already subject to vaccination requirements under state requirements—and may also be subject to the federal OSHA rules—this highlights the patchwork of vaccination requirements that are out there. Regardless of where they are located, it is imperative that school bus operators consult with counsel to determine their compliance obligations in their particular jurisdiction.
Businesses may be getting back to as close to the old normal as they can, but risks still remain and the vaccine mandate landscape is still developing. School districts and bus companies should continue to be cautious and diligent and follow applicable vaccine mandates and other COVID-19 mitigation requirements to avoid legal pitfalls.
The Equal Employment Opportunities Commission (EEOC) also updated its COVID-19 guidance on workplace vaccine issues. The EEOC’s guidance highlights some key points for employers to keep in mind as they prepare to comply with the ETS or other state and local mandates, or for those thinking about mandating, incentivizing or simply encouraging COVID-19 vaccines in their workplaces. School bus operators should work with their legal counsel to determine how best to comply with COVID-19 regulations that apply to them.
Editor’s Note: As reprinted in the February 2022 issue of School Transportation News.
Matthew W. Daus is the founder and chair of the Transportation Practice Group for Windels Marx. His practice focuses on transportation law, counseling clients on a broad range of matters including regulatory compliance, strategic planning, procurement, litigation, regulatory due diligence, administrative law, and public policy.