Last week, this firm issued a Legal Alert to our school law clients addressing questions related to the COVID-19 vaccinations. Recently, a question has been raised relating to whether a school district could require vaccinations without bargaining such a mandate with bargaining units. Our position at the time that the Legal Alert was released was that the serious health and safety issues surrounding COVID-19 and the spread of the virus, which constitute a public health emergency, would provide justification for a mandatory order, much in the same way that the EEOC recognized the pandemic as justification for mandating COVID-19 vaccinations.
It has come to our attention that the New York State School Boards Association (“NYSSBA”), among others, has taken the position that a vaccination mandate would need to be negotiated with any bargaining units. While the firm continues to believe that its initial position that vaccinations can be required is sound in light of the public health emergency presented by the COVID-19 pandemic, we wanted to notify you of NYSSBA’s position that, should school districts desire to mandate vaccines, they will need to bargain the mandate with its units.
A few things to keep in mind as you determine whether you want to engage in mandating the vaccine and bargain over the requirement: (1) there seems to be a groundswell of interest on the part of school employees to get the vaccine, which may make a mandate unnecessary; (2) there is a definite lack of access to the vaccine, which means that even if you are in favor of mandating your employees to receive the vaccine, such a mandate will likely have little to no practical effect in the near term as many employees may not be able to get an appointment in the near future; and (3) there remains the possibility of the Governor making the vaccine mandatory for certain classes of individuals, like school personnel and students.
Our firm has also become aware that NYSIR has issued guidance that stated that they would disclaim insurance coverage for any suit from employees who had medical emergencies after receiving the vaccine. That guidance must now be weighed in determining if you wish to mandate the vaccine, since the costs of any potential liability without insurance coverage may not be worth the benefit, especially given the various other factors surrounding the availability of the vaccine at the current time.
Given NYSSBA’s and NYSIR’s positions, we advise all of our clients to contact this office prior to making any determinations regarding whether to implement a vaccination mandate.
 Our office understands that requests to make the vaccine mandatory for individuals who work in health care facilities, prisons, and schools has been made to the Governor, but he has not indicated his willingness to do so at this point in time.