As local educational agencies work to comply with the state’s vaccination verification order for school workers by Oct. 15, the California Association of School Business Officials and law firm Lozano Smith hosted a webinar on hot topics surrounding the situation.
Clarification on the order itself along with information on testing unvaccinated workers, records storage, negotiating potential impacts of following the order and exemptions and protocols were discussed at the Sept. 9 event.
The Aug. 11 public health order applies to public and private schools serving transitional kindergarten through grade 12 students, explained Chelsea Olson Murphy, a partner at Lozano Smith, and includes all paid and unpaid adults serving in a school setting — even those at district offices. It does not apply to home school, child care (regardless of whether it is located at a school facility) or higher education.
Roman J. Muñoz, also a partner at Lozano Smith, shared how some LEAs handle on-site child care programs.
“I believe that with districts with child care programs, they’re often on school sites and you have a child care classroom right next to a TK or K program,” Muñoz said. “Most districts are saying they’re still an employee and are going to put them in with the testing or vaccination requirement and try to have the best approach for across-the-board testing.”
The attorneys added that while it does not seem to apply to board members as they are elected officials and not employees, they may want to participate and test regularly if they are not vaccinated. If board members volunteer or are on campuses when students are present, the order likely does apply. To view CSBA’s interpretation of the order, click here.
There are six ways LEAs can verify vaccination status:
- a COVID-19 vaccination record card;
- a photo of a vaccination record card as a separate document;
- a 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;
- a 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; or
- documentation of vaccination from other contracted employers who follow these vaccination records guidelines and standards.
Self-attestation is not an option.
LEAs must also have a plan for tracking verified worker vaccination status that allows information to be provided to local public health departments should they request it.
Unvaccinated employees, or those whose vaccinated status is unverified, must be tested weekly using a PCR or antigen test with emergency use authorization. Again, a plan for tracking results, conducting workplace contact tracing and reporting must be in place. Both attorneys recommended working with local public health offices to determine their reporting expectations.
More complicated subjects like testing substitute teachers, particularly with the current shortage many LEAs are experiencing, also came up. In the best case, they are vaccinated and can provide documentation. Otherwise, rapid testing is a good option that can be prior to the start of the school day or subs can arrange for testing outside of the workday and showproof when they come to campus each week.
Records, negotiations and exemptions
The storage of vaccination and testing records is proving to be a challenge for many LEAs. Documentation of vaccination status is confidential medical information and needs to be stored as such.
Some personnel and human resources software is updated to meet the new circumstances and LEAs can research new and expanded programs, though Olson Murphy said she hasn’t heard of anyone finding a method that works well to protect confidentiality while being able to track and share results yet.
Additionally, LEAs need to consider if following the order presents any changes to working conditions and plan for possible negotiations with labor partners.
“Recently the Public Employment Relations Board has issued a decision saying when an employer implements a mandatory testing and vaccination requirement, that is not subject to negotiation … the decision also said that we are required to negotiate impacts of any type of decision for mandatory testing or vaccination requirements,” Muñoz shared.
Some potential negotiable impacts are paid time off to get vaccination, when and where tests are conducted, discipline and consequences if someone fails to test and quarantine pay.
Muñoz suggested providing labor partners with a written notice as simple as announcing local implementation of the order and asking them to reach out by a specified date if they’d like to discuss anything.
Possibly “one of the biggest challenges LEAs will face moving forward” is handling medical and religious exemptions, Muñoz said. Local leaders can rely on the reasonable accommodation process that is already in place and work with an employee to find a suitable solution. For example, if a nasal swab can’t be used to test due to a medical condition, maybe an oral swab can be used upon further exploration.
If an employee is refusing to be vaccinated or test, progressive discipline may be required.
With a rise in religious exemption requests, starting an interactive process to find a solution will also be needed.
“We don’t want to challenge someone’s sincerely held religious belief; however, we can still require them to participate in all of these things if it’s going to create an undue hardship on the district,” Olson Murphy stated.
The process should be documented in writing.