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COVID-19 Vaccination of School Employees

Adult school employees are included in Phase 1B of Ohio’s vaccination plan, which is expected to begin on February 1, 2021. Phase 1B vaccination efforts prioritize employees of school districts that intend to be in or return to in-person or hybrid learning by March 1, 2021. To identify those school districts, the Ohio Department of Education created a Commitment to Return to In-Person or Hybrid Learning Form (“Commitment Form”), which is available on ODE’s Reset and Restart website.

Superintendents must sign and submit the Commitment Form to schools@odh.ohio.gov by Monday, January 18, 2021 to be prioritized during Phase 1B. Superintendents who submit the Commitment Form are expected to indicate the number of staff they believe will take the vaccine and whether a community partner has been identified to help administer the vaccines to school personnel.

Does your district’s plan meet the definition of “in-person” or “hybrid” learning?

Most likely yes, as long as it includes some aspect of in-person learning. The Commitment Form provides the following definitions:

• In-Person Learning: a district is in an “in-person learning” model if “all students have the option of in-person instruction, even if schedules are somewhat adjusted.”
• Hybrid Learning: a district is in a “hybrid learning” model if it is using “a mix of in-person and remote education.” Hybrid models come in many forms, such as “two consecutive (or nonconsecutive) days a week in-person, alternate weeks in-person, or selected grade ranges or schools as fully remote or fully in-person.” A district may be using a hybrid model even if “some grade levels are entirely in-person or entirely remote.”

Does a superintendent need the board of education’s approval to sign the Commitment Form? 

No, unless the district wishes to change a learning model that was previously approved by the board before the superintendent signs and submits the Commitment Form to ODE (for example, if the board previously approved a fully remote model, but the district now wishes to transition to hybrid or in-person learning).

Can an employer require employees to get the COVID-19 vaccine? 

In short, yes. The U.S. Equal Employment Opportunity Commission (“EEOC”) issued guidance advising that the Americans with Disabilities Act (“ADA”) does not prohibit employers from requiring employee vaccinations, as long as the employer first determines that an unvaccinated employee would “pose a direct threat to the health or safety of individuals in the workplace” (see Question K.5).  Despite this guidance, a school district will likely have an obligation to collectively bargain with the applicable labor union before adopting such a rule. Additionally, if individual employees object to a vaccine requirement for disability or religious reasons, the district would be required to engage in an interactive process and provide reasonable accommodations to qualifying employees.

While school districts may have the option to mandate employee vaccinations, whether a school district should require vaccinations is a thornier issue to be carefully considered by the board in consultation with legal counsel.

How will you count the number of employees willing to be vaccinated? 

As described above, districts that complete the Commitment Form will be expected to indicate the number of staff they believe will take the vaccine, which will impact the number of vaccines allotted to the district. One way to calculate this number is through an employee survey. The EEOC has issued guidance advising that the ADA does not prohibit employers from asking employees whether they plan to or have already received the vaccine.

As a reminder, issues related to COVID-19 are fluid and subject to rapid change. Additional information about Coronavirus and the State’s response can be found here.

This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys on our cell phones, at (614) 222-8686, or via email.