On Friday, August 27, 2021, approximately 200 people joined us for a webinar on issues faced by Connecticut schools as they reopen this fall during the current COVID-19 pandemic. We covered topics such as mask mandates, operational rules, mitigation measures, mandatory vaccinations for employees and employee accommodation and leave issues. Some very timely and interesting questions were raised by participants. Those interested in watching the webinar can access the recording here. Below are the answers to some of those questions.
1. Must student teachers be vaccinated or undergo weekly testing?
The Connecticut State Department of Education’s Frequently Asked Questions Regarding Vaccination of Covered Works in Schools issued on August 25, 2021 (the “FAQ”) and Executive Order 13D (“EO 13D”) state that a covered worker who is subject to the vaccination requirements includes “any person whose job duties require them to make regular or frequent visits to any such schools.” As such, although not paid, it is likely that a student teacher, who is in the classroom every day with students, would be covered under the mandate. Even if not covered, nothing within EO 13D or the FAQ prohibits a school district from requiring that student teachers be vaccinated and/or weekly tested. The same logic may apply to all “regular” school volunteers.
2. Must the school district arrange for the weekly testing?
EO 13D does not answer this question. The FAQ notes that “school districts are not explicitly required to arrange for the testing…” It is also clear that the employee must provide adequate proof of the testing results to the school on a weekly basis. The FAQ, however, also notes that “[s]chool boards are not, however, prohibited from arranging for the weekly testing ….” Thus, this is a question that is left up to the discretion of a school board. School boards should be careful to consider and understand the costs to it before deciding to arrange the testing and should be careful to be clear about who will be paying for the testing even if a school board decides to arrange it so as to provide easier access to testing by providing a testing site in the district.
3. Must school districts pay for weekly testing of covered workers who chose not to be vaccinated?
EO 13D is silent on this question. The FAQ is equally silent on the payment for the testing. Weekly COVID-19 testing, per Executive Order, is a job prerequisite for those who are not vaccinated. EO 13D states that the covered worker shall be tested weekly and shall “provide adequate proof of the test results on a weekly basis to the school board….” If an unvaccinated covered worker does not comply with the testing, the covered worker is no longer eligible to be employed. EO 13D thus puts the onus on the covered worker, not the school district, to get tested and provide the results. This is like any other job prerequisite, such as a required certification or license, that an employee must have to remain employed in a particular job. As such, it is posited that there is nothing within EO 13D that requires a school district to pay for the weekly testing of covered workers who choose not to be vaccinated. School boards, however, should review applicable collective bargaining agreements and any policies to ensure that there is nothing in them that would require the school board to fund such testing (and should be prepared for their unions to request bargaining on this issue, regardless of whether such bargaining is required).
4. How can the school district collect vaccination and testing information safely?
Vaccination and COVID-19 test results are considered confidential medical information under the Americans with Disabilities Act (“ADA”) and must be protected and kept separate from the employee’s personnel file. There is also always a concern about sending confidential medical information through e-mail that may not be secure. School boards need to work with their IT departments to determine a secure way to receive and store this information such asusing a secure e-mail system, some type of email encryption system, or uploading the information to a secure cloud server rather than sending through email.
5. Can we require unvaccinated employees to get their weekly test outside of work hours? And if so, would the time it takes to do the testing be considered work time that must be paid?
Much of the answers to ##2 and 3 above are applicable. The FAQ is quite clear that it is up to the employee to arrange for their own testing. The school could take the position that as it is up to the employee to get tested, it has no obligation to provide any special time off for testing. That being said, schools should review applicable collective bargaining agreements and any policies to ensure that there is nothing in them that would require the school to provide paid leave for such testing (and should still be prepared for their unions to request bargaining on this issue, regardless of whether such bargaining is required). A stronger case for use of paid leave may exist for employees who are not able to get vaccinated due to a medical condition or disability.
6. Does a school requiring unvaccinated staff to wear masks at all times while in the building and/or requiring an unvaccinated staff member to quarantine due to a school-related exposure while vaccinated staff do not have to quarantine mean that the school district has violated the unvaccinated staff’s confidentiality by revealing their vaccine status?
In our collective opinion, while a school must take efforts not to identify those who have been vaccinated, there is nothing in the ADA or any relevant privacy protections that would lead to a finding that the school’s requirement of mask wearing or a quarantine constitutes a violation of any privacy rights (as long as the school does not broadcast the reason that the employee is wearing a mask or is quarantined). Indeed, the EEOC notes as an example that if staff needs to know how to contact an employee, and that the employee is working even if not present in the workplace, then disclosure that the employee is teleworking without saying why is permissible. Simply having someone comply with a safeguard due to vaccination status is not a violation of any employee privacy right (as long as you do not affirmatively disclose one’s vaccination status).
7. Can the Board of Education be informed of the percentage of staff that is vaccinated at each school?
There is nothing that would prohibit a school district from informing the Board of Education as to the percentage of staff (or students) at each school who are vaccinated. The information must be presented in such a way that the identity of individual employees cannot be determined. Thus, while giving the overall percentage at the school would not be a problem, it might be more problematic to break that down by job category. For example, if there are only one or two school nurses in the building, announcing the percentage of school nurses who are or are not vaccinated would be easy to trace and would be considered revealing confidential medical information about that employee.
8. Can expulsion hearings still be held remotely this year?
Consistent with the revised Freedom of Information Act requirements, until we hear differently, expulsion hearings can still be held remotely this year.
9. May the school nurse contact a student’s medical provider who writes a mask exemption for a student in order to get more information?
We are awaiting guidelines/clarification from the State with respect to the schools. Normally, with respect to the general medical exemption, there is a built-in limitation in terms of what an employer (such as a school) can do when receiving documentation from a medical provider in support of an exemption. Indeed, EO 13A states the documentation submitted does not have to even name or describe the condition that qualifies the person for the exemption. It is possible that the clarification of the guidance for schools might give schools more discretion in terms of analyzing medical exemptions.
10. Is there anything that requires and/or prohibits synchronous learning for students who are on homebound instruction pursuant to Connecticut Agency Regulation §10-76d-15 or requires homebound instruction in their IEP?
While remote learning is not generally required (or even permitted) this year, the State Department of Education guidance on remote instruction from April 27, 2021 notes that remote educational options can be provided as an accommodation on an individualized basis. This same guidance notes that the general prohibition on remote instruction has no impact on requirements for a) homebound and hospitalized instruction to special education students who are unable to attend school due to a verified medical reason or b) instruction in the home that is being provided as a result of a PPT recommendation that such instruction provides the student with an appropriate education in the least restrictive environment (as reflected in the student’s IEP). As such, synchronous remote options could be utilized in these contexts (especially where there are limits on providing in-person instruction to those students).
11. Can we require new employees going forward to be vaccinated as a condition of employment without offering exemptions?
Probably not. The EEOC guidance is pretty clear that such exemptions should exist as accommodations in the work place; indeed, and consistent with the EEOC guidance, EO 13D notes that these exemptions will exist for a covered worker who “is able to perform their essential job functions with a reasonable accommodation that is not an undue burden on the school board.”
12. Can we require new employees going forward to be vaccinated as a condition of employment without offering a testing option?
Yes (probably). The FAQ and EO 13D directly state that, prior to extending an offer of employment, a school shall require that any covered worker a) is fully vaccinated against COVID-19); b) has received the first dose, and either has received a second dose or has an appointment for the second dose in a two-dose series vaccination, or has received a single-dose vaccine; or (c) is exempt from this requirement due to a medical or religious exemption. Nothing in EO 13D nor the FAQ would permit or require a school to offer a testing option to such “new” employees who do not qualify for the medical or religious exemption. However, stay tuned for possible further “clarification” on this issue.
13. What happens if an unvaccinated employee refuses to get tested on religious grounds?
While EO 13D and the FAQ provide a religious exemption to the vaccine (with the provision of a testing option for such employees), there is nothing in these documents that grants a religious exemption to the testing. There also is nothing in the EEOC guidance that recognizes a religious exemption to COVID-19 screening testing (as opposed to the vaccine).
This is an ever-evolving situation and more clarification is likely to be received from the State Department of Education and/or the Governor’s office prior to September 27, 2021. We will continue to post information as we receive it.