School district officials that are deciding on whether to require their school bus drivers to take a COVID-19 vaccine should balance three prevailing pieces of federal guidance as they await direction on the next steps, two attorneys told STN EXPO Virtual attendees.
Katie Anderson, a partner at law firm Clark Hill’s Dallas office, said much confusion has resulted from states being slow to finalize priority of vaccine distribution for school staff. She spoke to attendees at the general session “The Legalities of School Bus Driver COVID-19 Vaccinations” on Jan. 26.
In reviewing a compilation of vaccine distribution plans, School Transportation News counted 19 states that had specifically released vaccines to school staff at this report, where school bus drivers are eligible to receive the vaccine. Meanwhile, 26 states had released the vaccine or are planning to for all residents ages 65 and older. At least a half-dozen states have plans or are currently vaccinating residents deemed at high risk of contracting COVID-19 due to pre-existing medical conditions.
“Vaccines do not stop the spread of illness. Vaccinations do,” Anderson said.
But can school districts or private companies require their employees to receive vaccines? And how do organizations handle employee objections? And what about dealing with unions, or simply employee grumbling?
Anderson was joined by Maria Dwyer, who heads Clark Hill’s labor and employment group in Detroit. She shared that the Equal Employment Opportunity Commission (EEOC), Title VII of the Civil Rights Act, and the Occupational Safety and Health Administration (OSHA) offer the prevailing guidance for how organizations including school districts manage employee vaccines.
Prevailing Federal Guidance
Dwyer opened the session by relaying information on an EEOC update last March to its 2009 guidance on Pandemic Preparedness in the Workplace and Americans with Disabilities Act (ADA), which was developed to address the H1N1 virus. The update adds new information to respond to employer questions. The technical assistance document discusses how to implement the previous strategies “in a manner that is consistent with the ADA and with current Centers for Disease Control and Prevention (CDC) and state/local guidelines for keeping workplaces safe during the COVID-19 pandemic.”
The EEOC does not prevent employers from following CDC or other federal, state and local health guidelines, Dwyer pointed out.
In terms of vaccines, which are not considered medical examinations, EEOC recommends that employers encourage rather than mandate that their employees obtain vaccines, which it reiterated in December. Last month, it proposed a rule to allow employers to offer nominal incentives as part of participatory and voluntary wellness programs, to encourage their employees to get vaccinated. Dwyer explained that the proposed rule does not define what constitutes a “de minimis” or nominal incentive, but EEOC has set a thresh hold that employers could offer incentives of up to $40, for example, to reimburse for personal mileage accrued.
She also referred to public statements made by some large, national grocery and food delivery chains that they will offer their employees paid time off as an incentive to get vaccinated. “That is a little different in my opinion than offering a separate incentive for taking the vaccine,” Dwyer explained. “If you are mandating that your workforce be vaccinated, the time spent getting that vaccine is paid time under the Fair Labor Standards Act, much like mandating drug testing. Keep that in mind.”
EEOC says that employees may be entitled to an exemption based on an ADA disability that prevents them from taking the vaccine. Still, employers could require a vaccine but “they must be subject to accommodations,” Dwyer added.
During the STN EXPO Virtual session, attorney and presenter Maria Dwyer cited the 2018 decision by the 3rd Circuit Court of Appeals in Ruggiero v. Mount Nittany Medical Center. The court concluded that anxiety over the side effects of a vaccine may be considered a disability. Such a claim triggers medical documentation provided by the employee, a review of essential job functions, alternatives for employee, and undue hardships on the employer, including significant difficulty or expense in placing the employee in a different role, and the impact on co-workers and customers.
When employees are given the option of getting a vaccine, Dwyer said EEOC accommodations under ADA dictate that employee decisions to answer the pre-screening, disability-related questions are also voluntary. If they don’t answer, employers can decline to administer the vaccine, but they cannot retaliate, intimidate or threaten the employee for refusing to answer the questions.
She explained that EEOC accommodations primarily fall under the ADA as a disability, such as the appropriateness of a vaccine when someone is diagnosed with lupus.
If the employee receives a vaccine from a third-party such as a pharmacy or health provider that doesn’t have a contract with the employer, the ADA restriction that pre-screening questions be job-related and consistent with business necessity do not apply.
At the same time, EEOC requirements also legally regard the COVID-19 pandemic as posing a “direct threat” to the workplace. If an employer determines that an unvaccinated individual puts a coworker at risk, that employee can be barred from the workplace, if another accommodation that does not put coworkers at risk cannot be made available.
Then, there is Title VII, which allows employees to refuse vaccines because of legitimate, sincerely held and traditional religious beliefs, as long as no undue hardship is thrust upon the employer. Personal objections are not protected.
“A claim that the government is not going to tell me what to do with my body, for example, does not establish a religious exemption and the need for a religious exception,” Dwyer noted.
Courts have ruled that employers should ordinarily assume “that an employee’s request for a religious accommodation is based on a sincerely held religious belief,” she cited.
She advised that employers can still consider the following questions to determine if the accommodation is consistent with a sincerely held religious belief:
- Does the employee behave markedly consistent or inconsistent with the religious belief?
- Is the accommodation sought desirable and likely to be sought for religious reasons?
- Is the timing of the request render it suspect?
- Is there some other basis to conclude that the request is or is not sought for religious reasons?
She stressed that if an employer does exclude an employee because of a direct threat or undue hardship under Title VII, it does not automatically mean termination.
In the 22 states that follow OSHA regulations, the administration also has not required vaccines but instead leaves it to employers to develop workplace safety programs, which may include vaccinations and upheld under EEOC regulations and permissible under Title VII. A 2009 OSHA interpretation letter states that an employee with a medical condition who refuses a vaccination because of the “reasonable belief” that the shot could lead to serious illness or death may be protected from retaliation.
Related: Prioritizing Drivers in the Education Sector for COVID-19 Vaccine
Related: School Bus Drivers Could Be Among First Vaccine Recipients
Related: NSTA Urges School Bus Contractors to Petition Governors for COVID-19 Vaccine
Balancing Vaccines, Driver Shortages and Unions
Anderson closed the session by sharing her own poll of school district clients across North Texas, which indicates that they all will not be mandating a vaccine. “They are finding that most of their employees are clamoring for it,” she added.
That observation, she said, echoes a larger trend nationwide, as reported by Pew Research from a survey conducted in December. However, the survey notes that comfortability with vaccines differ along racial lines, with Black Americans expressing more doubt in the safety and efficacy of a vaccine than other groups.
Anderson advised that as more schools reopen, school districts should look at how big their workforces are and consider the impacts of worker shortages. Generally, she added, the smaller the workforce, the healthier the workforce needs to be and the more likely that an employer could require vaccinations, with both medical and religious exemptions.
“The flip side of that is, if you’re workforce is smaller and you mandate it, and there is a fear element, or an unknown element, or a lack of choice concern, then you may run off the smaller workforce,” she added. “That’s a balancing act you have to work through as supervisors and leaders in this area.”
Anderson also advised that if at all possible, the handling of vaccine objections by employees be handled by one person or central office within a school district or organization.
Regarding dealings with unions, the National Labor Relations Act protects employees’ ability to complain about work conditions. She pointed out the NLRB’s rulings in Texas, for example, do not apply to governmental entities, such as school districts.
“But the First Amendment does,” she continued. “Employees have a right to speak on a topic of public concern and including to each other.
“So, if we are finding that whatever we have chosen to do is meeting resistance, it is time to figure out where that resistance comes from and be sensitive to the fact that we can’t, probably, shut down our employees’ complaining. Instead, we probably need to go back to a different type of interaction to ensure we are doing what’s best for our school district while being sensitive to the needs of the employees.”
For school districts and states with strong union presences, Anderson said the Clark Hill legal education department universally agreed that vaccine requirements are a term that will need to be bargained for and agreed to. She cited a letter sent by the Amalgamated Transit Union to all state governors that urges them to classify bus drivers as frontline workers, and as such granting them early access to vaccines.