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The Top Three COVID-19 Vaccine Considerations for School HR in 2022

Human Resources

Remember when introduction of the COVID-19 vaccines seemed to present the bright light at the end of the tunnel from this global health crisis? After closures and a school year of hybrid and remote instruction, remember when we thought the 2021-2022 would be close to normal?

Then the Delta variant showed up, and now Omicron, forcing educators to yet again reconsider protocols, and raising new questions about school health management.

As of January 2022, 73.3% of eligible Americans received the first of two COVID-19 vaccine shots, while only 58.2% received both. Booster data is unclear, but likely follows far behind these numbers. The federal government and 22 states require COVID-19 vaccination for public workers. Of those states, only 6 specifically require educators to be vaccinated. Well over half of higher education students attend schools requiring vaccination.

Change in public education takes years. COVID-19 continues to force educators to identify and implement cutting edge instructional and public health practices to enable our students to learn while keeping them and staff safe.

We explored many important COVID-19 Human Resource legal issues during our recent webinar, but even more questions arise now with the ever-surging COVID-19 case rates.

What must HR professionals understand regarding vaccination today?

Can schools require employee COVID-19 vaccination?

Despite legal challenge in different states between both “pro” and “anti” vaccine mandates, the answer remains yes; schools may mandate COVID-19 vaccination for employees.

Unless they can’t.

As indicated, almost half of states require vaccination, and President Biden’s executive order, despite recent US Supreme Court decision striking down its application in the private sector, remains in place and requires vaccination for federal workers.

Can schools Require employee COVID-19 vaccination

These government mandates did not wait for full FDA approval. The J&J and the Moderna vaccines continue to be delivered under emergency use authorization; only Pfizer received full FDA approval.

The United States Department of Labor, Equal Employment Opportunity Commission (the “EEOC”), clarified months ago that the “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations. . . .”

Put simply, federal equal employment opportunity laws do not prevent your school from requiring all employees to be vaccinated, solely subject to certain “reasonable accommodation” provisions (which we talk about later).

Put simply, federal equal employment opportunity laws do not prevent your school from requiring all employees to be vaccinated.

Federal and state vaccine mandates demonstrate the legitimacy and “legality” of such rules amongst workers.

But what about those states that adopted laws “banning” vaccination (and other) mandates?

Florida most visibly prohibited employers from imposing certain COVID-19 mandates, including vaccination. But as time goes by, local school districts get around that direction by imposing their own rules. We see a similar pattern in other states.

What does this mean for school decision-making concerning vaccination mandates?

If there’s a mandate in your state, either compelling vaccination or prohibiting a vaccine rule, that direction sets the table for your school. If the state mandates vaccination (or masks, etc.), your workers must follow the direction. That is obvious.

The more difficult scenarios are presented in those states with vaccine prohibitions, or where no action was taken at all regarding vaccines.

If your state (or county or local) government prohibits vaccination mandates, you need to consult with your attorneys regarding the legal risks involved in seemingly “violating” that direction by imposing a vaccine mandate. Again, such actions continue to be taken in Florida and other places asserting health and safety considerations, even relying upon the need to honor special education mandates. And legal challenges continue to work through federal courts. There is no federal prohibition against mandates — only state and other prohibitions for schools to consider.

In those states where no action was taken regarding mandates, schools are at liberty to make their own decisions, considering public health recommendations, administrator preference, and community will.

In those communities, the question is not whether the school may impose a vaccination mandate, it is whether it should.

Consider public health recommendations. Unless your school employs an epidemiologist, you need the help of public health experts. You don’t have to know the technical answers here, but you do need to secure the right advice and direction and interpret it within your community’s preferences.

Develop clear policy and procedure, and implement those rules consistently.

Support your employees. Inform them about your decision making, and help them comply with this (and other) expectations.

How are schools required to accommodate employees regarding COVID-19 vaccination?

So vaccines may be mandated. Is that the end of the conversation?

Not exactly – like other employer mandates, employees may seek limited, “reasonable” accommodations. Accommodation requests from vaccine mandates should be analyzed just like any other accommodation request.

I know it feels different.

But like other seemingly novel aspects of this public health crisis, vaccine accommodation requests should not be considered through some new or different lens. An accommodation request here is just like any other accommodation request from other work rules. The same analysis applies under federal and state law.

In fact, it is critically important that schools do not create some “COVID-19 Lane” with a different analysis for these accommodation requests, despite how new or different they feel.

Interactive Process


Engage in the interactive process – the same process you implement with regular, ADA or Section 504 accommodation requests.

What does that look like? Typically, the process begins with employee documentation confirming/diagnosing a disability, which the employee provides to support some adjustment in usual work conditions or rules.

You know you aren’t required to accept the diagnosis or grant the requested accommodation, but you are required to interact with the employee about the request to determine whether a reasonable accommodation may be provided.

That may be simply sitting at your desk and having a conversation about the request. How can we help? What accommodation are you seeking?

COVID-19 vaccine accommodation requests require the same interaction, which should be documented in your ordinary processes.



Although the interactive process here does not look different, the nature of the requests likely differs. Usually, accommodations seek adjusted work schedules, assistive devices, or other adjustment to expected duties. Vaccine accommodation requests likely seek blanket exemption from vaccination mandates.

That means that these requests really do not seek “accommodations” which adjust expectations. They seek “modifications” requesting a change in expectations or rules. Such requests, by their very nature, need not be granted. The ADA and Section 504 require “reasonable accommodations” under certain circumstances, not the change of work expectations.

Further, and much trickier, vaccine exemption requests are usually asserted for medical or religious exercise reasons. By their very nature, these requests are different than garden-variety accommodation requests.

Accommodation requests which assert medical reasons should be considered by your medical officials, be it a school physician or nurse. It is not the job of HR to analyze medical opinions, but you should shepherd that request through the usual process and make sure same is handled consistently.

The religious exercise accommodation request raises uncomfortable questions involving the sincerity and genuineness of the request. Just as you are not a medical expert when considering the medical reasoning of the medical request, you certainly are not expected to be a theologian analyzing the genuineness of a religious belief.

Under law, you may not have to make those decisions, and practically, you probably don’t want to.

If there is a vaccine mandate in your state, look at the law. Some vaccine mandates, “on the face” of the legislation, provide circumstances for religious exemptions. Consider them.

The EEOC explains that the definition of religion is broad and law typically protects beliefs, practices, and observances with which the employer may be unfamiliar (because again, you’re not expected to be a theologian). That agency says that you should ordinarily assume the employee’s request for religious accommodation is sincere.

But if an employer is aware of facts that provide an objective basis for questioning whether the asserted belief is sincere, then you can have a further conversation.

What do those objective questions look like?

  1. Has the employee behaved in a manner inconsistent with the professed belief? (Like never asserted any religious beliefs/practices to date?)
  2. Whether the accommodation requested seeks a particularly desirable benefit, likely sought for secular reasons? (Like how much of a drag it is wearing a mask 8 hours a day?!)
  3. Whether the timing of the request renders it suspect? (Like made immediately upon a vaccine mandate?)
  4. Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. (We reviewed your medical records. We see that you’re otherwise fully vaccinated. Why different now?)

Schools may conclude, with objective reasons, that the religious exercise exemption request is insincere/not genuine, and deny the request.

At the same, time, even accepting (for the sake of argument) that the request is genuine, schools may rely upon additional guidance from the EEOC which provides that virtually all accommodations sought seeking vaccine mandate exemptions from most government mandates constitute an “undue hardship” and may be denied.

EEOC specifically directs that if “a religious practice conflicts with a legally mandated federal, state, or local security requirement, an employer need not accommodate the practice because doing so would create an undue hardship.”


There is a difference between undue hardship under Section 504 and ADA and undue hardship under Title VII and the First Amendment.

Practically, this means that if the asserted religious practice conflicts with a legally mandated federal, state, or local security requirement, your school likely need not accommodate the practice, because doing so would create an undue hardship.

Consider the basis of the vaccine mandate, and whether a religious accommodation request “conflicts” with that direction. Talk with your counsel.

Likely, you need not even get into the issue of the sincerity of the request and may deny the request, outright.

Can schools take action against employees who disregard COVID-19 vaccination rules?

What about the employee who doesn’t seek accommodation and simply refuses to comply with mandated vaccinations? May you take employment action?

The simple answer is yes.

You may consider the vaccine requirement like any other mandate for employment, like a teaching certificate, or other job requirements or rules.

  • Consider where the mandate comes from — is it a state requirement?
  • A county requirement?
  • Imposed by your school?
  • Is the mandate imposed across all employees or just some?

The clearer and more universal the mandate, the easier it will be to defend employment action taken against one in violation. And like with all HR practices, your school needs to provide clear information to all affected employees, counsel them on expectations and consequences, and consistently implement the rule.

You need to do what you have to do to be able to do what you want to do.


An unclear direction, without additional clarification or counseling, perhaps even implemented inconsistently, is tough to defend.

But what about tenure protection? Or other process requirements under law or contract? Can a school simply terminate a non-complying employee without regard to those protections?

Likely, yes.

If this mandate is imposed at the state level, it likely is a requirement now for public employment, just like a teaching certification or other pre-qualification. And just like with accommodation requests, look at the “face” of the executive order or legislation, and see how it addresses this issue. There may simply be no question.

Local rules imposed by your specific school may be different. And you need to discuss options with your local counsel. That said, likely you have significant discretion to take employment action against non-compliance.

As always, engage in a caring communication with the employee and make sure that your expectations are clear. Ignorance of the rule does not obviate responsibility. But it may make it harder to enforce.

Assume the employee doesn’t know. Assume the employee is not watching the news. Assume the employee is not paying attention. (I know that is hard to comprehend when those of us working in school HR have been closely following law and best practice impacted by COVID-19 around the clock for the last two years.)

Communicate, put in writing, have meetings, make sure that union leadership understands. If there are questions, counsel and offer support.

COVID-19 rules and research keeps changing. It may be a slippery slope to terminate employees in this ever-changing environment. The conservative (and caring) response may instead offer an unpaid leave until such time as the mandate is no longer in effect, or after the public health reality changes.

Make informed and consistent and caring decisions that further the mission of your school, which also reinforce and safeguard the community you want it to be.

Communicate, show care, and be consistent. And as always, be careful out there!

John B. Comegno II

John Comegno is Founder and President of the Comegno Law Group, P.C., and is recognized nationally as a leading School Law practitioner, representing public and independent schools, Educational Services Commissions, Special Service School Districts, and third-party education vendors. A nationally-recognized lecturer on School Law who has lectured to thousands of educational professionals across the United States, John regularly presents to conventions, professional groups, associations, public and independent schools, and other audiences