In the continuing effort to combat Covid-19 and provide safe classrooms for students, vaccinations have been showed to be among the most effective measures for preventing the disease, or lessening its severity.
“Scientific studies have shown that even one unvaccinated teacher can lead to dozens of sick school children,” the White House says in spelling out President Joe Biden’s Covid-19 Action Plan with regard to schools. “This is a completely avoidable outcome, and we can protect kids—especially those in elementary schools and early childhood education and child care centers where children are not yet eligible for the vaccine—by surrounding them with fully vaccinated adults as the first line of defense against COVID-19.”
Biden has urged states to mandate vaccinations for public school employees, and at least nine have done so—California, Connecticut, Hawaii, Illinois, New Jersey, New Mexico, New York, Oregon, and Washington, as well as Washington, D.C.
But one step the president announced in September—mandating that employers with more than 100 employees to require employees to be vaccinated against Covid-19 or be tested weekly—would not apply to many public school systems.
Biden announced that the Occupational Safety and Health Administration (OSHA) is developing an emergency temporary standard regarding mandated vaccinations, but even if a school system meets the threshold of 100 employees, the OSHA rule would not directly apply to them.
“Local education agencies, such as public school districts, and other state and local government entities are not subject to federal regulation, inspection or enforcement by OSHA,” a September brief from the Congressional Research Service states.
That doesn’t mean vaccination mandates won’t be imposed on some schools through other means.
OSHA can enforce its rule requiring vaccinations at education entities under federal control—Head Start and Early Head Start programs, Department of Defense school, and Bureau of Indian Education-operated schools.
The Department of Defense operates 160 K-12 schools for students from military families in the United States and abroad, and the Department of the Interior operates 53 schools through the Bureau of Indian Education across the nation on and off tribal lands. These schools and programs collectively serve more than 1 million children each year and employ nearly 300,000 staff, according to the White House.
In addition, the Congressional Research Service says, private schools are considered employers under OSHA regulations “and are subject to federal OSHA jurisdiction, as are some charter schools, depending on their administrative structure and governance.”
State regulations
Even though school districts are not subject to OSHA’s federal regulation, many of them will be required to follow the vaccination requirement if they are in states that have established their own occupational safety and health plans. OSHA approves state plans “if they are ‘at least as effective’ as OSHA’s standards and enforcement.”
“Thus, state and local entities in states with state plans, including (local education agencies), would be required to comply with the OSHA [emergency standard] on Covid-19 vaccination if it becomes effective,” the Congressional Research Service says.
Twenty-six states—Alaska, Arizona, California, Connecticut, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington and Wyoming—and two territories—Puerto Rico and the U.S. Virgin Islands—have OSHA-approved state plans that cover state and local government employees.
OSHA estimates that state plans cover about 40% of workers in the United States.
The National Education Association (NEA), the nation’s largest teachers union, strongly backs Biden’s plan for requiring vaccinations.
“As students and educators go back to school this year, we are focused on keeping students safe, learning and engaged,” says NEA president Becky Pringle. “That is why the National Education Association strongly supports President Biden’s new Covid-19 vaccinate-or-test requirements in workplaces with 100 or more employees and call for state vaccination requirements for all educators.”
Opponents of Biden’s vaccination mandate, including some Republicans, have characterized the plan as an overreach of the president’s executive powers and have threatened to sue over the announced regulation.
Biden’s response: “Have at it.... Look, I’m so disappointed that particularly some Republican governors have been so cavalier with the health of these kids, so cavalier with the health of their communities. This is — we’re playing for real here. This isn’t a game. And I don’t know of any scientist out there in this field that doesn’t think it makes considerable sense to do the...things I’ve suggested.”
