As we have discussed previously, Governor Lamont’s original Executive Order 13D mandating COVID-19 vaccination for most school employees raised numerous questions. In what appears to be an attempt to address the many concerns raised by schools, late Friday afternoon Governor Lamont issued Executive Order 13G repealing EO 13D and making some significant changes to the COVID-19 vaccination requirements for school employees (which includes private and public pre-K through 12 schools) and contractors who work in those schools. EO 13G also applies to child care facilities (including youth camps). So, what has changed?
First, EO 13G creates an explicit opt out provision to the COVID-19 vaccine requirements for any covered worker hired prior to September 27, 2021. The definition of a “covered worker” has changed slightly and now includes “all employees, both full and part-time, contract workers, providers, assistants, substitutes and other individuals working in a public or non-public pre-K to grade 12 school system or child care facility … whose job duties require them to make regular or frequent visits to any school or child care facility or to have regular or frequent contact with children in child care, students, students or staff.” A “contract worker” means “any person who provides services to a school board or child care facility but is not employed by the school board or child care facility and is not a volunteer.”
Thus, a covered worker who is “hired” before September 27, 2021, may, as an alternative to vaccination, and regardless of whether the covered worker has a medical or religious exemption, submit to COVID-19 testing not less than once per week and provide adequate proof of the results on a weekly basis in the form and manner that will be directed by the Department of Public Health. Such an unvaccinated employee must also comply with “any additional safety precautions imposed by the school board ….” The weekly testing provision also now allows DPH to promulgate a policy and procedures for limited-duration waivers of the testing requirements. Conversely, those hired on or after September 27, 2021 can only receive the testing option in lieu of vaccination if they qualify for a medical or religious exemption to the vaccine.
The result of this language is that all school board employees hired prior to September 27, 2021, have no vaccination requirements or testing requirements until September 27t, when those requirements kick in. The question that remains unanswered is, “when is an applicant considered hired?” Is it when an offer of employment is made, when the offer is accepted or when the employee actually starts working? The answer to this question will dictate whether an employee offered employment between now and September 27 has a vaccination opt-out other than qualifying for one of the limited exemptions.
Importantly, the prior language from EO 13D, stating that a school board “shall not employ” any covered worker who is not vaccinated or qualified for an exemption, has been removed. The language now says that after September 27, 2021, school boards “shall require” that any covered worker is fully vaccinated, has started the vaccination process or is exempt but can perform the essential functions of their job with a reasonable accommodation that is not an undue burden to the school board.
EO 13G establishes that any covered worker or contract worker who fails to comply with the EO shall not be allowed on school board premises until the individual complies with the order. There are not, however, any specific penalties set forth in EO 13G for a covered worker who fails to comply other than not being allowed on school property until they do comply. It is now left up to the school board to develop a policy and/or follow existing policies and procedures regarding employee discipline for an unvaccinated (or partially vaccinated) employee who fails to comply with the testing requirements.
As to contractors, the new EO makes it clear that it is the contractor not the school board that is responsible for authenticating vaccination and/or test records for contract workers. The new EO also adds a provision requiring the contractor to provide adequate proof of COVID-19 test results for those contract workers who are not fully vaccinated and also allows a school board the option to require the contractor to provide documentation of vaccination as well.
The onus remains on the school board to authenticate the vaccination status of its own covered workers and to maintain documentation of the vaccination and/or exemption and to report compliance with this in a form and manner to be directed by the DPH. As proof of vaccination, the new EO allows the CDC COVID-19 Vaccination Report Card or photo thereof, documentation from a health care provider or electronic health care records, a State Immunization Information record, and now the use of “other documentation prescribed by the Commissioner of Public Health.”
Finally, the EO reiterates the confidentiality provisions that are already applicable through the American’s with Disabilities Act and other laws protecting the confidentiality of medical information. It also makes clear that any information submitted, collected or maintained regarding an individual covered worker pursuant to the EO will not be subject to disclosure under the Freedom of Information Act.
EO 13G still leaves many questions unanswered. For example, while the EO recognizes that an employee who is exempt from vaccination due to a medical or religious exemption must be able to perform the essential functions of their job with a reasonable accommodation that is not an undue burden to the school board, the provisions allowing unvaccinated employees hired prior to September 27 to choose the testing option (without an exemption) does not contain any such exception. It is unclear what options a school board would have if a current employee, who does not qualify for an exemption, chooses not to be vaccinated and is in a position where the employee due to lack of vaccination, could not perform his/her job without being a threat to the safely of the students and/or other employees.
Some other unanswered questions include: (1) Who will pay for the COVID-19 testing for employees hired prior to September 27 who choose not to be vaccinated, (2) Will a rapid COVID-19 test suffice or must it be a PCR test? and (3) What about those employees who the EEOC has found are entitled to an exemption, such as pregnant employees, but who are not covered under the EO listed exemptions?We expect that there will be continuing developments regarding this EO as we near September 27. In the meantime, 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.
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