Education Law Notes  

On September 10, 2021, Governor Lamont issued Executive Order 13G, which set forth a revised COVID-19 vaccination mandate for Connecticut school employees (and childcare facilities). As my colleague, Melinda Kaufmann noted, the revised mandate requires all school employees hired on or after September 27, 2021 to either be 1) fully vaccinated, 2) in the process of being fully vaccinated, or 3) exempt from the vaccination requirement either because the vaccine is likely to be detrimental to the individual’s health or due to a sincerely held religious belief (and he/she is able to perform the essential functions of his/her job with a reasonable accommodation that is not an undue burden to the employer).  Those who are not fully vaccinated must submit to weekly testing.  In addition to the above, those employees hired before September 27, 2021 may submit to the weekly COVID-19 testing as an alternative to vaccination regardless of whether he or she has a medical or religious exemption (but must also comply with any additional safety precautions imposed by the school).  

Several questions remained, and Connecticut’s Department of Public Health (as promised previously) issued “Implementation Guidance for Executive Order 13G” on September 17, 2021. 

PROOF OF VACCINATION 

The Guidance lists the following categories of documentation that employees may provide to demonstrate proof of vaccination:

1. A valid CDC Vaccination Card, which must contain the employee’s name and date of birth, along with the manufacturer of (and date on which) the vaccine that was administered;
2. A record from the individual’s vaccine provider providing the same information listed in #1, above;
3. A certificate from the Vaccine Administration Management System (“VAMS”), if the individual received vaccination through the VAMS system, providing  that same information, and
4. A copy of the individual’s official immunization record from the Connecticut Immunization Information System, (CT WiZ. State Immunization Information Record) providing that same information.

In addition, such documentation will not be deemed valid unless accompanied by the individual’s signed declaration as to the authenticity of their proof of vaccination (including any copies of such records submitted).  The Guidance includes a sample declaration form.  Schools are not required to use this form, but any form that they use must collect the same information as the sample form.   

MEDICAL AND RELIGIOUS/SPIRITUAL EXEMPTION REQUIREMENTS

Individuals who cannot receive a COVID-19 vaccination because the administration of the COVID-19 vaccine is likely to be detrimental to the individual’s health must request an exemption from Executive Order 13G via a form that is signed by the individual’s physician (MD or DO), physician’s assistant, or advance practice nurse practitioner.  The Guidance includes a sample exemption form.  Schools are not required to use this form, but any form that they use must collect the same information as the sample form.   

Individuals who object to vaccination on the basis of a sincerely held religious or spiritual belief may request an exemption from Executive Order 13G by using an exemption request form provided by the school. The Guidance includes a sample exemption form, but notes that schools “should determine, in discussion with their Human Resources management and legal counsel, what process and information is appropriate and necessary for review in determining whether a request for a religious or spiritual exemption from COVID-19 vaccination … should be accepted or rejected.”  This is why it is important for a school to have a policy that addresses these issues. 

TESTING REQUIREMENTS

Covered workers in PreK-12 schools who are not “fully vaccinated” by September 27, 2021 must test for SARS-CoV-2 (the virus causing COVID-19) at least weekly (i.e., at least one test every 7 days) unless they can provide documented proof that they have tested positive for, or been diagnosed with, COVID-19 infection in the prior 90 days. This waiver of testing is new; those submitting such a request of a waiver must use the form that is included with the Guidance.  Such testing must be either PCR or antigen SARS-CoV-2 tests and must be administered and reported by a state licensed clinical laboratory, pharmacy-based testing provider, or other healthcare provider facility with a current “Clinical Laboratory Improvement Amendments” waiver.  Only test results submitted to the school within 72 hours of the test administration date will be deemed compliant with the testing requirement. Test result reports should include the name and location of the testing laboratory or provider facility, the name of the person tested, the date the sample was collected, and the test result.  Please note: Home-based testing and results obtained outside of the above listed types of facilities are not considered adequate proof of a test.

DOCUMENTATION SUBMISSION

For vaccination, exemption and testing documents, the Guidance merely indicates in a conclusory manner that that schools “shall establish a process for individuals … to submit required documentation in a timely and secure manner, and ensure that those individuals are informed of, and fully understand, the established process” and that these processes “may be developed, implemented, and maintained either on-site through facility staff, or through an authorized third party.”   However, the Guidance notes that “processing delays with vaccine providers, VAMS, web-based applications, laboratories, medical providers, or state agencies will not excuse compliance” with these Executive Order 13G mandates (especially the September 27, 2021 deadline).  Indeed, the Guidance notes that covered workers “are solely responsible for gathering and submitting all required documentation in advance of the established deadline in order to ensure that they are in compliance on and after September 27, 2021.”

COMPLIANCE

Recordkeeping.  Covered schools must maintain in either paper or electronic format the following information:

1) A master roster of all covered workers, with each individual’s status as:  a) fully vaccinated, b) having received their first dose of a two-dose vaccine prior to September 27, 2021 and the scheduled date of their second dose appointment, c) having been granted a medical or religious  exemption, or d) having chosen to submit to weekly testing in lieu of being fully vaccinated .

2) A COVID-19 vaccination record for each fully or partially vaccinated individual, as well as completed and signed declarations of authenticity of any vaccination record for those submitting a copy of a vaccination record.

3) A completed, signed, and approved medical or religious/spiritual exemption form for each individual who has not been fully or partially vaccinated and has been granted an exemption.

4) Documented adequate proof of the results of a weekly test for SARS-CoV-2 for each individual who is not fully vaccinated and has not had a documented COVID-19 infection within the prior 90 days.

5) A completed and provider-certified request for a temporary waiver from weekly SARS-CoV-2 testing for individuals with a documented COVID-19 infection within the prior 90 days.

So, what about contractors? Schools need not maintain similar documentation for contract workers but must require contractors to positively affirm that their workers are in compliance with the provisions of Executive Order 13G prior to granting those workers access to their facilities. Contractors must maintain either in paper or electronic format the above-described information for their contract workers.  However, schools are responsible for securing reports from contractors regarding their contract workers’ compliance.  The Guidance notes that “at a minimum, periodic reporting of numbers of contract workers who are vaccinated, have been granted an exemption, and are subject to weekly testing should be reported to the school board … at a frequency that the school board … determines is sufficient to assure compliance.”

Effect of Testing Results and Other Non-Compliance by Employees. Workers should not be provided access to any facilities covered under Executive 13G unless the most recent test result provided is “negative” or indicate that virus material is “not detected.” Results provided as “inconclusive” are not considered negative results and as such require retesting.  If an individual receives an inconclusive result and cannot be retested and provide a negative result within 7 days of their last negative test, then that individual should be excluded from on-site work until they can provide a negative test result. In addition, after September 27, 2021, schools must restrict access to their facilities for those individuals who fall out of compliance at any time with these mandates (e.g., a failure to submit adequate proof of a weekly COVID-19 test result and/or receive a second dose of a two-dose vaccine when scheduled).  

Enforcement and Inspections.  All covered schools must collect and maintain copies of the required documentation for their covered workers and ensure compliance with Executive Order 13G by the September 27 deadline. Schools must make available for inspection by the State Department of Education any documentation required to confirm compliance with the Order, upon request. Childcare facilities must make available for inspection by the State Office of Early Childhood any documentation required to confirm compliance with the Order, upon request. Again, processing delays with vaccine providers, VAMS, web-based applications, or any state agency will not excuse compliance with the Executive Order.  Those failing to comply with the Order may be subject to penalties, as outlined in Executive Order 13G.  Please note: Contract workers and contractors providing those workers should be prepared to similarly comply with all provisions of the Order by September 27, 2021.

As always, stay tuned for further developments.

Pullman & Comley school law attorneys are here to help you with developing policies, procedures and notices to address this Executive Order and any other directives that are issued in the future.  Please reach out to any of the attorneys in our school law group for assistance in implementing this or any other Executive Order.