See You In Court - February 2021

The members of the Nutmeg Board of Education were frustrated.  They have heard loud and clear from parents and others in the school community that they want in-person instruction.  However, it seemed to the Board members that it was always one step forward and two steps back.  Just last week, Acorn Elementary School had to switch over to remote learning because students from three different families were all diagnosed as positive for COVID when school reconvened for in-person learning after the holiday break.

Veteran Board member Bob Bombast was particularly incensed at what he considered irresponsible parent behavior in traveling for the holidays and not keeping their children safe.  Bob shot off an angry email to Ms. Superintendent demanding that she share with Bob the names of the students and their parents so that he could give them a piece of his mind.  Ms. Superintendent was polite, but firm in informing Bob that he was not entitled to that information, but Bob wasn’t buying it.  He told Ms. Superintendent that he would be bringing his concerns over her insubordination to the Board for discussion in executive session.         

In the meantime, Bob was heartened by the roll-out of the COVID vaccines and the priority teachers and other school employees were to receive under the recommendations of the COVID-19 Vaccine Advisory Group.  Bob went on Twitter to promise that Nutmeg would be the first school district in Connecticut to vaccinate 100% of its employees by April 1.  “And when we are done with the employees, the students are next!” he vowed.

The response on Twitter to Bob’s grandiose promise was mixed.  While Bob got some retweets, the prevailing sentiment was that Bob’s plan was too ambitious, and one person even asked whether Bob’s tweet was an early April Fools joke.  This skepticism simply served to stiffen Bob’s resolve, and he set out to show the doubters that he could deliver on his promise.

At the next meeting of the Nutmeg Board of Education, Bob unveiled Operation Shot-in-the-Arm, his plan for vaccinations in the Nutmeg Public Schools.  Under Bob’s plan vaccination would be required for all school staff, no ifs, ands or buts.  To facilitate this process, Bob’s plan called for paid time off for employees to get the vaccine, and employees would be expected to offer proof of vaccination within the next thirty days.  Or else.

Ms. Superintendent was annoyed with Bob’s presumption, and she started to explain that the situation is complicated and asked that the Board step back and let her do her job.  However, Bob shooshed her, and he went on and on about how universal vaccination of the Nutmeg staff is the key to getting back to in-person learning and staying there.

Other Board members were uncertain about the wisdom of adopting such an ambitious plan.  Fellow Board member Mal Content asked Bob to clarify – “Or else, what, Bob?”  Bob was only too happy to clarify.  Referring to the extraordinary loss of life as a result of the pandemic, Bob responded that those teachers and other staff members who did not comply with the required vaccination program would be fired, simple as that.

Ms. Superintendent spoke up at this point, and she warned the Board that the situation was by no means as “simple as that.”  But the other Board members did not want to be outdone by Bob.  Mal Content seconded Bob’s motion, and with no further discussion the Board approved Bob’s plan.

Is the Nutmeg Board of Education on the right track here?

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Sadly, no.  Starting with Bob’s proposal for mandatory vaccinations, we note that the EEOC has provided guidance during this pandemic that would permit employers to establish mandatory vaccination programs if they are justified by business necessity.  But adopting such a plan involves many competing considerations that Bob has ignored. 

First, we must ask whether adopting mandatory vaccination program would be premature.  So far, the FDC has given certain vaccines only “emergency use authorization” rather than outright approval.  Under these circumstances, employers may be reluctant to move forward with a mandatory vaccination program. 

Second, the EEOC guidance on mandatory vaccination programs is clear that such plans must provide for certain exceptions, unlike the plan Bob proposes.  Some employees may object to taking the vaccine due to disability and/or religious objections, and employers must respect those objections.  Specifically, the employer must seek to accommodate those employees, because the employer would discriminate against such employees on the basis of disability or religion if it does not do so.  The EEOC guidance contemplates that there may be situations in which such objections cannot be accommodated, and in such cases the employer may terminate the employee.  However, that would be a tall hill for school boards to climb.  Employers can take such dramatic action only if the unvaccinated employee (1) poses a direct threat to the safety of others and (2) there is no reasonable way to accommodate the employee.

An employing school district would be hard-pressed to demonstrate that either condition could be met for a teacher or other school employee who could not be vaccinated.  For months now, school districts have taken the position that school can proceed without undue risk by providing personal protective equipment and taking other remedial measures.  Moreover, boards of education have allowed remote work in many situations.  It is hard to imagine a circumstance now when a non-vaccinated employee would pose such a threat that termination of employment is the only option.

A related point is that districts cannot require that students be vaccinated under current law.  While we may hope over time that most parents will arrange for the vaccination of their children, that will remain a personal family choice unless and until the General Assembly revises Conn. Gen. Stat. 10-204a to require immunization against COVID.  Given that some students will thus be attending school without vaccination, it is hard to see how a school district could argue that a teacher who is not vaccinated is a “direct threat” to health and safety

Bob’s plan also fails to recognize that a board-sponsored vaccination plan, mandatory or voluntary, would be a change in working conditions that would require consultation and, if requested, negotiations with the unions for the affected employees.  While the State Board of Labor Relations (SBLR) has not ruled on the subject, it is likely that adoption of a vaccination program would be viewed as a management prerogative, and that negotiations would not be required over the decision itself (decisional bargaining).  However, it is likely that the SBLR would rule that the employing board must negotiate over the impact of the program.  Providing time off for such vaccinations is fine, but the Board could not make that decision unilaterally.

Finally, Bob was off-base in demanding that Ms. Superintendent give him the names of the families whose children tested positive for COVID.  That medical information about specific students is confidential under FERPA.  Since Bob was not responsible for the related operational concerns, he (and other Board members) would not have a need for the information to do their jobs.  Accordingly, they would have no right to receive it.