This article appeared in the Spring 2021 issue of The Classroom Teacher.

Rest assured readers, this is not “just another COVID article.” Instead, we are going to discuss the emergency use authorization of COVID-19 vaccinations, and the vaccines’ impact on teaching in the fall. The fluid situation of the pandemic has resulted in an unprecedented level of uncertainty about the return to work this fall. 

Evolving guidelines from both the state and federal level, sometimes in conflict, have left school district employees wondering what the new school year will look like. Districts are handling this situation differently, and employees have many questions regarding COVID-19 vaccinations. 

Here are some common questions and concerns that school district employees are facing, along with a short history of developments over the past several months. 

How we got here

When vaccinations began at the end of 2020, Texas educators could only receive vaccines if they were age 65 or older, or had certain medical conditions that made complications more likely if they contracted COVID-19.

By mid-February, the U.S. Centers for Disease Control and Prevention revised vaccination guidelines. The changes, put in place under President Joe Biden, recommended that state, territorial, local and tribal officials give high priority to teachers. That prompted the Texas Department of State Health Services to expand eligibility to all school employees on March 2. 

Texas further expanded eligibility in late March to include all adults (16- and 17-year-olds are eligible for the Pfizer vaccination). 

Vaccines for children have not yet received FDA authorization, though Moderna and Pfizer both have clinical trials underway and anticipate approval later in the year. (Update: The FDA authorized the Pfizer vaccine for emergency use in ages 12 to 15 in mid-May.)

What is emergency use authorization?

The FDA’s emergency use authorization process was put in place to allow for quick medical countermeasures in the event of public health emergencies, such as the coronavirus pandemic. EUA streamlines the formal process to allow use while trials are ongoing. It is a different approval process than the FDA vaccine licensure. 

As of mid-April, three COVID-19 vaccines have received emergency use authorization from the FDA: Moderna, Pfizer and Johnson & Johnson. The Moderna and Pfizer vaccines require two doses, while J&J is a single shot.

A fourth, created by AstraZeneca that is in wide use in Europe, is likely to seek FDA emergency authorization in the coming weeks. 

Do I have to get a COVID-19 vaccine?

The FDA requires that anyone who receives a vaccination gets informed about the nature of the EUA. Specifically, there is an obligation to “ensure that recipients of the vaccine under an EUA are informed … that they have the option to accept or refuse the vaccine.” This information must be communicated to recipients of the vaccines, who then can accept or refuse to get the vaccine. 

Further, the Texas Education Agency says school districts cannot require employees to get a COVID-19 vaccine as a condition of continued employment because the vaccines received emergency use authorization. 

Can districts offer incentives for vaccination?

While vaccination is voluntary, districts can encourage employees to get COVID-19 vaccines. Some districts in Central Texas have offered teachers bonuses with proof of vaccination. This financial incentive has allowed some district to reach a higher number of employees being vaccinated. Still, you should not have any employment ramifications related to your refusal to get the vaccine. 

Can my district ask me if I’ve been vaccinated?

Yes. The inquiry into whether you have or have not been vaccinated is not a disability-related inquiry. This means that an employer can ask you if you have been vaccinated. 

The legal issues arise if you say that you have not been vaccinated, and the employer asks follow-up questions as to why. When an employer begins inquiring as to why you have not been vaccinated, that may be a disability-related inquiry. That type of inquiry is subject to the ADA standard that these issues and inquiries must be “job related and consistent with business necessity.” 

Any request to disclose such information would arguably violate the Americans with Disabilities Act. Also, the district could potentially be in violation of the ADA by regarding someone as disabled, or not, based upon the vaccine information that may or may not be provided. 

This article is not intended as legal advice. If you encounter any problems or have questions, please call the TCTA Legal Department at 888-879-8282 to speak with a staff attorney.