School & District Management

How ‘Vaccine Discrimination’ Laws Make It Harder for Schools to Limit COVID Spread

By Sarah D. Sparks — September 21, 2021 4 min read
Principal and District Superintendent Bonnie Lower takes the temperature of a student at Willow Creek School as the school reopened, Thursday, May 7, 2020, in Willow Creek, Mont.
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In Montana, it’s as much against the law for a teacher or principal to ask a student’s vaccination status as it is to ask them their religion.

Vaccine antidiscrimination laws—which bar policies that treat those who have been vaccinated against COVID-19 differently from those who have not in school, work, or other areas— are making contact tracing, quarantines, and other mitigation efforts challenging for education leaders coping with a Delta-driven surge of COVID cases in their schools and communities.

“At some point, it’s like, are the schools and the health-care providers the only ones trying to bail water on this ship as we sink?” said Tobin Novasio, the superintendent of the Lockwood school district just outside Billings.

While Montana was the first to pass such a strict vaccine antidiscrimination law, nine other states including Ohio, New Jersey, South Dakota, and Tennessee have bills pending with similar language.

“I think all of our school districts are figuring out how do they make this work, but they are unable to rely on the CDC guidance in the way that the rest of the nation can,” said Lance Melton, the executive director of the Montana School Boards Association.

A little more than half of vaccine-eligible Montanans have completed the shots, and the state law known widely as HB702 categorizes unvaccinated people as a protected class for discrimination purposes. Montana’s law still allows schools to require vaccines for other childhood illnesses, such as measles, but unlike in most states, the Treasure State’s standard schedule of vaccinations is set by the legislature, not state health officials.

In practical terms, that means schools cannot ask teachers or students whether they have been vaccinated, and cannot use the Centers for Disease Control and Prevention’s guidelines to set quarantine rules or track potential close contacts from outbreaks. Those recommendations call for shorter time in isolation for vaccinated people who have been exposed to the coronavirus, but education leaders cannot ask for someone’s vaccination status or differentiate contact tracing, quarantine, or other policies based on that. They say the anti-discrimination rules make it next to impossible to track and contain outbreaks.

School leaders barred from differentiating

As of Sept. 21, Yellowstone County, Mont., has nearly 2,200 active COVID-19 cases or about 13 percent of the county’s 164,000 residents. All eight schools in the county have had at least one student or staff member affected in the last month. Schools are allowed to ask those who have been exposed to stay home and use remote instruction for 10 days, but “the big issue is you have to treat everyone the same, so even though the CDC says vaccinated people don’t have to quarantine, that’s been determined [by the county] to be a violation of the law,” said John Felton, the health officer for Yellowstone County. “So all we can do is suggest to people, but we can’t tell them that they need to quarantine.”

“We’re in a real surge right now,” Felton said. “We’re at levels we haven’t seen since late last year.” In the last seven weeks, new infections in the county have risen from about 16 a day to more than 100. And while about 12 percent of cases were among children under 18 last year, Felton said that age group now makes up a quarter of all new symptomatic COVID-19 cases.

Local health departments last year deputized school officials to help trace those who have been exposed to the virus, but schools are out of the loop now. Novasio said Lockwood was already down eight substitutes last week when two more teachers tested positive for COVID-19. Novasio said it has become next to impossible to get updated information about who has tested positive at a given school, and the district generally must rely on parents’ and staff members’ self-reports.

Novasio said schools also have had some difficulty convincing those who test positive to stay in quarantine. “People still have it in their mind that COVID doesn’t impact kids because that’s what we heard a year ago—whereas with the Delta variant, I mean, it’s a completely different ballgame,” he said.

Further complicating prevention efforts, many districts across the state do not require universal masking. Novasio said only about 10 percent to 20 percent of students in his district regularly wear masks.

“We have protocols that we put in place, and we’ve asked our teachers to keep kids spread out as much as they can, having them in pods and those types of things,” he said. “But things like masks have become such a flashpoint.”

Ongoing battles over vaccination and masking in schools have also worsened statewide shortages in substitute teachers, which may drive schools to close faster than student outbreaks.

“You’re going to go into a room every day and have about seven hours of exposure to a population base that is known to be not vaccinated—you know, under 11. Other than health care, no others than day care and public school teachers are on the front lines like that,” Melton said. “Our teaching force and absolutely our subs were kind of thin to begin with,” adding that retirees, likewise, are reluctant to come in.

At least one state, however, has moved in the opposite direction. While it, too, has a vaccine-discrimination bill pending in the legislature, Oregon’s newly updated labor rulesnow mandate that schools, like other employers, prove that all staff have been fully vaccinated before allowing them to work less than 3 feet apart or go without a facial mask.

A version of this article appeared in the September 29, 2021 edition of Education Week as How ‘Vaccine Discrimination’ Laws Make It Harder for Schools to Limit COVID Spread


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