By Kevin Lungwitz
June 25, 2021
This time last year we were bracing for so many COVID knowns and unknowns, many of them frightening, and all of them unprecedented. Here are some of the COVID-19 legal issues we will be grappling with as the new school year begins.
Can the School Require Students to be Vaccinated?
The state has announced it will not require the COVID vaccine for students in the 2021-22 school year, despite the vaccine becoming available in May 2021 for children ages 12-15.1 Without state authorization, it is unlikely school districts can require it, at least as long as the approved vaccines are administered under a Food & Drug Administration “Emergency Use Authorization” (EUA).
School vaccines are regulated by the state. State law allows school districts to require a host of student vaccines.2 Mandated vaccines work, and are responsible for virtually eradicating diseases like measles, smallpox and polio. State law gives the Texas Department of Health Services the right to develop immunization requirements for children and to work with the State Board of Education in implementing these requirements in the public and private schools.3 Texas law allows (a) physicians to state a medical reason why a person cannot receive a specific vaccine; and (b) parents/guardians to choose an exemption from immunization requirements for reasons of conscience, including a sincerely held religious belief. The law does not allow parents/guardians to elect an exemption simply because of inconvenience.
Governor Greg Abbott’s Executive Order GA-35 (April 5, 2021) suspends the Texas Health & Safety Code “to the extent necessary to ensure that no governmental entity can compel any individual to receive a COVID-19 vaccine administered under an [EUA].” This order attempts to strike middle ground between completely requiring or not requiring, vaccines. It kicks the can down the road until the FDA fully approves or licenses the vaccines. Once this occurs, things could change. One would guess that in school years to come, schools could require COVID-19 vaccines just like any other vaccine, but whether they will is another question.
Can the School Require Staff to be Vaccinated?
As with student vaccines, it is unlikely that school districts will require employees to be vaccinated while the vaccines are administered under an EUA, but this could change. It is a question thorny enough that the TEA answered it this way on its website on June 15, 2021: “As this matter falls outside of TEA’s jurisdiction, a school district or open-enrollment charter school should confer with its legal counsel regarding any questions it may have regarding this matter.”
Ordinarily, employers may require employees to be vaccinated against any number of diseases if it will benefit the public good and carry out the employer’s objectives, subject to an employee’s documented health or religious objections. The EEOC—the federal agency in charge of workplace discrimination laws—has recently reaffirmed this principle as it relates to the COVID vaccine, although it cautioned there may be disproportionate barriers to some demographic groups receiving the vaccine.4 Once the COVID vaccines are fully licensed by the FDA, it is likely employers could require it under state and federal law. A fully licensed vaccine would not be covered by GA-35, the order prohibiting the requirement of a vaccine administered under an EUA. In a nutshell, whether to require a fully licensed vaccine will be determined by future gubernatorial orders and the school boards across the state and nation, most likely dependent upon how the disease waxes or wanes in the coming months.
Can Schools Require Students or Staff to Wear Masks?
No. According to Governor Abbott’s Executive Order GA-36 (May 18, 2021), no governmental entity, including a school district, and no governmental official may require any person to wear a face covering. Furthermore, “…the imposition of any such face-covering requirement by a local governmental entity or official constitutes a ‘failure to comply with’ this executive order that is subject to a fine up to $1,000, beginning at 11:59 p.m. on May 21, 2021.” However, GA-36 makes it clear that whether to voluntarily wear a mask is a choice everyone can make.
As of August 20, the mask rules are being debated in court. Read the August 20 Mask Update.
Does the School Have to Keep Providing PPE?
The law does not speak to whether the personal protective equipment and safety procedures that arose during the pandemic such as plexiglass partitions, widely available sanitizer, and creative seating has to continue. But if students and staff have become accustomed to and feel safer by using unobtrusive, safety-conscious PPE and procedures, so be it. Lean in, and err on the side of safety and healthier staff and students.
What if Parents Complain about Our COVID Procedures?
Parents can always file a complaint by using policy FNG (local). Parents might be upset masks are not required or that a certain teacher has chosen to wear a mask. Whatever the case may be, as long as staff is not violating the governor’s orders, state or federal law, or school policy, there shouldn’t be much to worry about. At the beginning of last school year, school districts were required to post their COVID rules on their website. Those rules will be outdated at the beginning of the 2021-22 school year and should be replaced by other guidance and rules about how the district will operate under COVID for this school year. Once adopted and posted, follow the rules.
In conclusion, to repeat the sage advice of the TEA, when in doubt about any of these tricky COVID legal issues, always consult with your supervisors and the school district’s lawyers.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1Maria Mendez, “COVID-19 vaccine available for kids 12 and older, but Texas health officials not requiring it for school,” Austin American Statesman, May 13, 2021. Austin American Statesman.
2Texas Education Code Sec. 38.001.
3Texas Health & Safety Code Sec. 81.023.
4EEOC press release, May 28, 2021; https://www.eeoc.gov/newsroom/eeoc-issues-updated-covid-19-technical-assistance.
TEPSA News, August 2021, Vol 78, No 4
Copyright © 2021 by the Texas Elementary Principals and Supervisors Association. No part of articles in TEPSA publications or on the website may be reproduced in any medium without the permission of the Texas Elementary Principals and Supervisors Association.
Note: Information from Legal Ease is believed to be correct upon publication, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
