As noted in CSBA’s Aug. 11 e-blast, the California Department of Public Health issued a public officer health order entitled “Vaccine Verification for Workers in Schools.” Noting that California is committed to safe, full, in-person learning for all students, the Aug. 11 order adds another layer in the effort to prevent the further spread of COVID-19 in K-12 schools by requiring “school workers” to either provide proof of their full vaccination status or undergo weekly testing for COVID-19. Because this is an order of the State Public Health Officer, it has the force and effect of law and all local educational agencies and private schools in California must comply with it.
The order, which must be fully implemented by LEAs by Oct. 15, 2021, prescribes two paths forward: workers must either present evidence of being fully vaccinated or they must undergo weekly COVID-19 testing. There are no exceptions, even for individuals who have a medical contraindication to vaccination or who are otherwise unable to be vaccinated. Enforcement of this order has been left up to each LEA. This means that LEAs are responsible for tracking vaccine verifications, establishing testing protocols, and addressing workers who refuse to comply with the order.
Which employees/workers does the order apply to?
The order applies to workers in public and private schools serving students in transitional kindergarten through grade 12. For purposes of this order, workers are defined as “all paid and unpaid adults serving in the school settings [described in the order] including certificated and classified staff and volunteers who are on-site at a school campus supporting school functions.” This includes bus drivers and other staff who are in contact with students on a regular basis but does not apply to board members or staff who are not at a school site or otherwise in regular contact with students. Board members who are regularly on-site at a school campus should follow the order.
Although the order does not apply to members of school boards and county boards of education, except as described above, the CDPH notes that vaccination against COVID-19 is the most effective means of preventing infection and the potential for subsequent transmission and outbreaks that could disrupt the ability for students to safely return to in-person learning. Boards can lead by example by following recommendations that all individuals who are eligible to be vaccinated do so.
Verifying vaccination status
Individuals are considered fully vaccinated two weeks or more after they have received the second dose in a two-dose series (Pfizer-BioNTech or Moderna or vaccine authorized by the World Health Organization), or two weeks or more after they have received a single-dose vaccine (Johnson & Johnson [J&J]/Janssen). Verification requires LEA confirmation of the name of the individual, the type of vaccine and the vaccination date(s) as evidenced by one of the following:
- COVID-19 Vaccination Record Card (issued by the Department of Health and Human Services Centers for Disease Control and Prevention or WHO Yellow Card)
- Photo of a Vaccination Record Card as a separate document
- Photo of the client’s Vaccination Record Card stored on a phone or electronic device
- Documentation of COVID-19 vaccination from a health care provider
- Digital record that includes a QR code that when scanned by a SMART Health Card reader displays to the reader client name, date of birth, vaccine dates and vaccine type
- Documentation of vaccination from other contracted employers who follow these vaccination records guidelines and standards
No other form of documentation may be used for vaccine verification. If any one of these forms of evidence is presented by the school worker, the LEA should accept the evidence as proof that the worker has satisfied the vaccination requirements for purposes of this order, unless the LEA has knowledge that the documentation provided is not valid.
LEAs must also track vaccination verifications and maintain weekly testing records, which must be made available to local health officials upon request. Such records should otherwise remain confidential to protect the privacy of the employees.
Weekly testing
If workers do not provide requisite evidence of full vaccination, they must undergo weekly testing, regardless of whether they are exhibiting any symptoms of illness. If they test negative, they continue work as usual, subject to masking requirements and other applicable guidance. If they test positive, they must stay home from work and follow applicable quarantine protocols.
The Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act both require health insurance plans cover COVID-19 diagnostic testing without cost-sharing, co-pays or deductibles. In addition, if the employer requires an employee to obtain a COVID-19 test (or vaccination), the employer must pay for the time it takes for the testing or vaccination, including travel time. Therefore, testing should be available to employees free of cost. This includes the cost of the test and the time it takes for testing or vaccination because such time would constitute “hours worked.”
The state has indicated that testing kits will be made available for LEAs and administered on-site to minimize the work hours staff have to spend on testing. LEAs that decide to test on-site should ensure testing occurs in a controlled and secure environment to minimize exposure to others in case an employee tests positive.
Bargaining obligations arising from vaccine/testing order
The CDPH order likely creates bargaining obligations for LEAs whose employees are represented. The decision to implement the mandate is not subject to negotiation because it is a mandatory order. However, the negotiable impacts and effects of the decision are subject to negotiation upon a valid request to bargain from the exclusive representative. To be valid, the request must state that it is a request to bargain impacts and effects and provide notice of the negotiable impacts and effects the exclusive representative seeks to bargain. If an LEA believes a request to bargain is not valid, it must request clarification of the request from the union. (LEAs should consult legal counsel before deciding to reject a request to bargain.) Examples of impacts and effects of the CDPH order an exclusive representative may demand to bargain include, but are not limited to:
- Scheduling of testing for unvaccinated employees
- Whether testing will be during work time and, if not, employee pay for testing
- Confidentiality and storage of vaccination records
- Time off from work for employees to obtain vaccination and LEA provision of vaccine clinics
- Alternatives to discipline for an employee’s failure to comply with the order
LEAs should also be aware that if an LEA seeks to expand the vaccination and testing requirements beyond what is required in the order (e.g., requiring vaccination and/or testing of represented employees who do not directly serve students), that decision is likely negotiable because it is not required by law and would impose a new term and condition of employment.
LEAs should provide their unions with notice of their intent to implement the order — and any decision to expand vaccination/testing requirements beyond the order’s mandates — sufficiently in advance of the Oct.15 deadline to allow the exclusive representative to request bargaining and for the parties to bargain impacts and effects.
Failure of employees/workers to provide verification or undergo weekly testing
Workers who do not provide verification and who do not undergo weekly testing should not be permitted at any school site. Subject to collective bargaining agreements, board policy, and administrative regulation, Education Code section 44964 (certificated) and Education Code 45199 (classified) permit employees to use available personal leave in situations where there is a temporary inability to perform the services required of them because of illness, accident or quarantine.
For employees who do not comply with the order, LEAs should note that certificated and classified employees with permanent status may only be suspended without pay or dismissed for cause and only if the LEA follows all procedural requirements for discipline set forth in the Education Code, applicable collective bargaining agreements, and board policies and administrative regulations.
Enforcement
The order does not contain any provision regarding the potential consequences for an LEA that fails to comply with its requirements. However, because the order has the force and effect of law, there are a number of potential consequences to which an LEA may be subject if it fails to comply with the order, including legal liability to students or their families who contract COVID-19 from an employee, worker’s compensation claims by employees who contract COVID-19 from other employees, loss of insurance coverage or loss of state funding.
Robert Tuerck is CSBA chief legal counsel, District and County Offices Legal Services
