Miriam PearlmutterJanuary 13, 2021 

As COVID-19 vaccines become more available, Ohio school districts will need to decide whether to implement mandatory immunization requirements for employees. Governor DeWine has prioritized school staff to begin receiving the vaccine as early as February 1, 2021, provided superintendents agree to in-person or hybrid attendance for students. Making this determination requires careful analysis of community needs, existing policies, and collective bargaining agreements, as well as federal and state regulations. The following questions and answers may be helpful as your district considers its options.

Q: May a school district require its employees to get the COVID-19 vaccine as a precondition to continued employment?

Generally, yes. In December of 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance indicating employers do not run afoul of the Americans with Disabilities Act (“ADA”) by requiring employees to be vaccinated.[1] Specifically, the ADA sharply limits the medical inquiries and examinations that an employer can require when an individual is already employed.[2] The EEOC, however, determined that the vaccine itself is not a medical examination and by requiring an employee to be vaccinated, the employer does not implicate the ADA’s restrictions on medical examinations.

However, various exceptions are likely to arise. As explained below, administering the vaccine (or contracting with a third party for administration) may lead to pre-immunization medical questions and disability-related inquiries, permissible only when job-related or consistent with a business necessity.[3]  Further, employees who have disability-related or religion-based objections to the vaccine may be entitled to reasonable accommodations.[4]  If your school district opts to mandate vaccines for all employees, it will be important to consider individuals with disabilities and religious objections on a case-by-case basis.  Additionally, before implementing any vaccine requirements, your board should ensure it has: (1) considered its collective bargaining agreements; (2) adopted the relevant policies; (3) developed appropriate guidelines; and (4) consulted with counsel as needed.  School districts may also wish to consult with their insurance providers regarding liability concerns, if any.

Q: May a school district ask for proof that an employee received the COVID-19 vaccine?

Yes, simply asking for proof is permitted.  However, any follow-up questions about why the employee did not receive a vaccine may elicit information about an employee’s disability.[5]  A district may only ask such questions if it determines that such inquiries are job-related and consistent with business necessity.[6] To meet this standard, the district must have a reasonable belief, based on objective evidence, that either: (1) declining the vaccine will impair the employee’s ability to perform essential job functions; or (2) the employee will pose a direct threat to others by exposing them to the virus.[7] This may be a fairly difficult standard to meet in the school setting, particularly for buildings that have been open for instruction during the pandemic.  Even if the staff member poses a direct threat, however, the district would need to consider possible reasonable accommodations to reduce the risk of such a threat.[8]

In short, it is unlikely that unvaccinated employees will be considered to be a direct threat or unable to perform their job-related responsibilities.  Accordingly, school district administrators should avoid asking follow-up questions about why an employee did not receive a vaccine. As an aside, administrators should not require antibody testing (in place of vaccine proof), as the EEOC considers antibody testing impermissible in making decisions about returning to the workplace.[9]

Q: May a school district terminate an employee who refuses vaccination for disability-related reasons?

Generally, no.  Although individuals with disabilities who pose a direct threat to others are not entitled to continued employment,[10] this standard is fairly difficult to meet.  Specifically, in deciding whether the unvaccinated employee poses a direct threat, the district would need to consider the: (1) duration of the risk; (2) nature and severity of potential harm; (3) likelihood that the potential harm will occur; and (4) imminence of the potential harm.[11]  Moreover, the district would also need to determine it could provide no reasonable accommodation to mitigate the above risk or that providing such an accommodation would be an undue hardship.[12]

Many, if not most, school districts have been open to some form of in-person instruction for students at some time during the coronavirus pandemic. Accordingly, it would be challenging to show that an employee now poses a direct threat which cannot be mitigated by having the employee work remotely or some other reasonable accommodation aimed at mitigating transmission to others.  However, if a particular staff member works with medically-fragile students, for example, the above analysis may be relevant to a district’s determination of direct threat. If a reasonable accommodation is not possible, the employee may be excluded from the workplace, but termination may still not be appropriate if the employee can take leave or work out other alternative work arrangements that would mitigate potential transmission to others.[13]

Q: May a school district terminate an employee who declines to be vaccinated for reasons related to religious beliefs?

Generally, no.  Federal law requires employers to provide reasonable accommodations for religious belief or practice, unless doing so would pose an undue hardship.[14]  Undue hardship under Title VII includes anything over and above a minimal cost.[15] Depending on your district’s expected expenses in accommodating employees who refuse vaccines for religious reasons, you may consider whether the undue hardship standard would be met. Notably, district administrators should assume that an employee’s request for religious accommodations is sincere.[16] If you have an objective basis for questioning either the religious nature or sincerity of the belief, you may request additional supporting information.[17]

Determining whether to implement a mandatory or voluntary vaccine program is a challenging decision with multiple factors to consider. Please do not hesitate to contact us for any further assistance or with additional questions.

Miriam Pearlmutter is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at mpearlmutter@walterhav.com or at 216-619-7861.

[1] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws Section K

[2] 29 CFR §1630.14(c)

[3] Id.

[4] 29 CFR § 1630.9(a); 29 CFR § 1605.2(b)

[5] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws Section K.3

[6] 29 CFR § 1630.14(c)

[7] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#5

[8] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws Section K.5

[9] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, A.7.

[10] 29 CFR § 1630.15(b)(2).

[11] 29 CFR §1630.2(r).

[12] Id., 29 CFR § 1630.15(d).

[13] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws  K.7.

[14] 29 CFR § 1605.2 (b).

[15] 29 CFR § 1605.2 (e).

[16] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws  K.6

[17] Id.