Now that teachers across the country are eligible for the COVID-19 vaccine, how many in any given school have gotten a jab?
Nationally, there are little data on teacher vaccination rates, and that’s partially because many school districts have not been keeping track of which of their employees have gotten the COVID-19 vaccine. District leaders also say they are wary of violating their employees’ privacy.
But vaccinating educators has largely been considered a critical component of reopening school buildings safely. Teachers and parents want to know how many staff members in a school are inoculated against COVID-19, especially since vaccines for young children are many months away.
How can districts balance the competing priorities of privacy and transparency? Education Week spoke to Robert Field, a professor of law and health management and policy at Drexel University, and Stacie Kershner, the associate director of the Center for Law, Health, and Society at Georgia State University College of Law, to answer some of the most pressing questions currently facing schools about teachers and COVID-19 vaccines.
Can school or district leaders require teachers to get vaccinated?
Not yet. Because the COVID-19 vaccines are currently under emergency use authorization, the legal consensus is that mandates are not permissible.
Once the vaccines have full approval from the Food and Drug Administration, employers could mandate them. But they will still have to make exceptions for individuals with certain medical conditions or religious beliefs when imposing any requirements.
Can school or district leaders require teachers to disclose whether they’ve been vaccinated?
Yes, but they will need to be cautious about the types of questions they’re asking. The Americans With Disabilities Act protects employees from sharing disability-related information with their employers. While the U.S. Equal Employment Opportunity Commission has said that asking whether an employee has gotten a COVID-19 vaccine is not a disability-related inquiry, subsequent questions—like asking why an employee hasn’t gotten vaccinated—could be.
Employers can ask disability-related questions if they comply with the ADA standard of being “job-related and consistent with business necessity.” Employers would have to argue that an unvaccinated employee would pose a “direct threat” to the health and safety of others, and then offer a reasonable accommodation, such as remote work or continuing mitigation measures, to an employee who cannot be vaccinated.
But the Centers for Disease Control and Prevention has said teacher vaccinations are not a prerequisite for reopening school buildings. It’s still unknown to what extent the vaccines prevent transmission of COVID-19, so the Occupational Safety and Health Administration recommends not distinguishing between vaccinated and unvaccinated employees for the purposes of mitigation measures, such as masking or distancing. Also, in some places, teachers might not have had the opportunity to get vaccinated yet.
For now, “I think most schools would steer clear of testing the legal limits in terms of requiring [a response],” Field said, adding that districts might instead administer a survey where teachers can respond that they have been vaccinated, they have not, or they prefer not to answer. That would still give administrators the information they need to make operational decisions, he said.
Can administrators share the percentage of vaccinated staff with parents and the community?
Yes. Sharing the aggregated data of how many teachers in a school or district are currently vaccinated does not violate anyone’s privacy, the experts said. It’s also in the public interest.
“You want people to feel assured” about the safety of schools, Kershner said. “That’s good for teachers to know, too.”
Can administrators tell parents whether a specific teacher has been vaccinated?
No. State and local privacy laws typically prohibit employers from disclosing their employees’ medical information. (The Health Insurance Portability and Accountability Act, known as HIPAA, which is the federal law restricting release of medical information, generally does not apply to school districts. The Family Educational Rights and Privacy Act, or FERPA, also would not apply in this situation—it protects the privacy of student education records, not teachers’ records.)
However, parents of children with complex medical needs who are at greater risk for serious COVID-19 symptoms might especially want to know if their child’s teacher or aide is vaccinated, Kershner said. In those rare situations, she said, it could be possible to include in the student’s individualized education program that the child be placed with vaccinated teachers.
A version of this article appeared in the March 31, 2021 edition of Education Week as Do Teachers Have to Disclose Their Vaccination Status? Experts Weigh In