Q: I am hearing that the federal government, through Operation Warp Speed, expects to begin delivering COVID-19 vaccines before the end of 2020. Can a school district require students and staff to receive a COVID-19 vaccine?
A: Theoretically, yes as to students; no, as to staff (for now). The Texas Department of State and Health Services (DSHS) sets immunization requirements for students grades K-12 throughout the state of Texas, and as such, may add the COVID-19 vaccine to its list of mandatory child immunizations at any time, thereby triggering ISD admissions monitoring obligations. Regarding staff, school districts will most likely need to follow individualized accommodations or permitted exceptions based upon current established law until the Equal Employment Opportunity Commission and/or other governmental agencies develop specific guidance to the COVID-19 vaccine and mandatory vaccination programs.
The Centers for Disease Control and Prevention (CDC) has recommended that state health departments be responsible for distribution of the COVID-19 vaccines within their boundaries once the vaccine is approved by the U.S. Food and Drug Administration (FDA). As such, the DSHS will serve as the State’s lead agency in COVID-19 vaccine distribution.
Chapter 25 of the Texas Administrative Code provides that every child in the state “shall be vaccinated against vaccine-preventable diseases caused by infectious agents.” DSHS is granted authority to set immunization requirements for students grades K-12 by the Texas Education Code, Chapter 38. The statute provides explicitly that “the Department of State Health Services may modify or delete any of the immunizations in Subsection (a) or may require immunizations against additional diseases as a requirement for admission to any elementary or secondary school.” As such, DSHS can and most likely will add a COVID-19 vaccine, once approved, to the list of those required of students grades K-12. The timing, of course, will be dependent upon the approved priority schedule, which may or may not result in 2021 application to ISD students.
Regarding employees, the EEOC has so far avoided providing a direct answer to whether employers can require employees to receive COVID-19 vaccines. Despite no final legal guidelines for a mandatory COVID-19 vaccine, it is anticipated that the EEOC will require that employers comply with other legal requirements with respect to any mandated vaccine, including the Americans with Disabilities Act (ADA) and Title II of the Civil Rights Act of 1964. The EEOC’s pandemic preparedness guidelines in regard to influenza state that “[g]enerally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” https://www.eeoc.gov/sites/default/files/2020-04/pandemic_flu.pdf (emphasis added). The ADA provides for an exemption from mandatory vaccines for valid and supported medical reasons (e.g. severe, life-threatening allergy to the vaccine). Similarly, Title VII provides for an exception to mandatory vaccines due to sincerely held religious beliefs.
DSHS has provided guidance regarding COVID-19 vaccines in development and vaccination planning in the United States and in Texas, which is available at https://www.dshs.texas.gov/coronavirus/. Please contact your local school attorney if you seek additional information or have specific questions regarding updates to required immunizations for students grades K-12 and staff.