Education Law Notes  

We are now entering the dark winter of the COVID-19 crisis; at the same time, there is a light at the end of the tunnel.  In the meantime, Connecticut’s educational institutions (and employers in general) must consider how they can survive in a world with increasing COVID-19 cases, hospitalizations, and death.  

CONTROLLING COVID-19 EXPOSURE AND USE OF COVID-19 TESTING: The Governor’s Executive Orders and guidance from both the Centers for Disease Control and Prevention (CDC) and U.S. Equal Employment Opportunity Commission (EEOC) give employers considerable discretion to require COVID-19 testing. Noting that employers are generally permitted (consistent with the Americans with Disabilities Act, or ADA) to require mandatory medical tests of employees where they are “job related and consistent with business necessity,” the EEOC has stated  that “an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.”  The EEOC has noted that testing administered by employers consistent with current CDC guidance and public health agency guidance will meet the ADA’s afore-mentioned “business necessity” standard.  To be clear, you cannot literally jam a swab into an employee, but an employer could condition one’s ability to be in the workplace (and perhaps entitlement to certain leave benefits) on submitting to a test.      

Regarding students and COVID-19 tests, again, no one should shove a swab into any unwilling student.  However, a school could still condition a return to school (for example, for a student with COVID-19 symptoms or returning after out of state travel) on COVID-19 test results, and a student who either has refused to submit to a test or is awaiting test results could be offered distance learning opportunities during any applicable quarantine period.

But what about the much-promised COVID-19 vaccines?  At some point in time (hopefully, sooner than later), a vaccine will be available on a widespread basis, which raises other issues. 

COULD A STUDENT BE REQUIRED TO RECEIVE A COVID-19 VACCINE AS A CONDITION FOR ADMISSION INTO SCHOOL?  Connecticut currently requires school districts to condition a student’s entry into school upon providing proof of certain immunizations. Connecticut General Statutes §10-204a.  There is an exception in that statute for where 1) such immunizations are medically contraindicated because of the child’s physical condition, or 2) the child presents a statement from a parent or guardian that such immunizations would be contrary to the child’s (or the parent’s or guardian’s) religious beliefs. The religious exemption has become controversial, and efforts have been made in recent legislative sessions to curtail it.  Regardless, this statute does not specifically mandate a COVID-19 vaccination (since the Connecticut General Assembly is not occupied by multiple Amazing Kreskins), and it is unclear as to whether our legislature will impose any sort of COVID-19 vaccine mandate upon the schools, and with what exceptions.        

Thus, it may be up to individual school districts to determine if they wish to mandate that students receive the COVID-19 vaccine as a condition of attendance.  Last century, in Jacobson v. Massachusetts, 197 U.S. 11 (1905), the U.S. Supreme Court ruled that states had the power to enforce compulsory vaccination requirements; subsequently, in Zucht v. King, 260 U.S. 174 (1922), the Court ruled that school districts could exclude unvaccinated students from their schools.  While most states (including Connecticut) provide religious-based exemptions to their general immunization requirements, some states do not.  In this context, and in the absence of any legislative solution, a school could decide to impose a COVID-19 vaccine requirement for all of its students even without a religious exemption. The question remains whether the ADA might require some accommodations for students with medical contraindications to the vaccine, which leads to …      

WHAT ABOUT MANDATORY VACCINES FOR STAFF MEMBERS?  The EEOC previously issued general guidance on a vaccine mandate in March of 2020 in the context of influenza vaccines:  

An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

The EEOC appeared to construe employment-based civil rights statutes to require a religious or disability exemption to any employer vaccine mandate. 

Or is that the end of the story? One could argue that since COVID-19 is much more dangerous and lethal than the flu, allowing unvaccinated persons in the work place does impose an “undue hardship” on an employer’s operations (and especially in the schools).  In addition, in prior COVID-19 guidance addressing medical inquiries, the EEOC noted that COVID-19 poses a “direct threat” to the safety and health of persons; under the ADA regulations, a “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 CFR §1630.2(r).  The existence of such a direct threat to safety and health might tip the scales towards a COVID-19 vaccine mandate (especially for school employees).  Stay tuned for updated state and federal guidance 

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Pullman & Comley has policy templates and other useful resources available to assist Connecticut schools and employers in considering and implementing their options and navigating the web of executive orders, laws, regulations, and other state and federal guidance related to COVID-19.  Please contact our attorneys for assistance.