Governor orders all staff to be vaccinated or submit to testing
On August 26, 2021, Governor Pritzker issued Executive Order 2021-20, which mandated vaccinations and/or testing for school employees in school districts. Specifically, the Executive Order requires:
All School Personnel must have, at a minimum, the first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine within 10 days after issuance of this Executive Order, and be fully vaccinated against COVID-19 within 30 days following administration of their first dose in a two-dose vaccination series. Any School Personnel who have not established that they are fully vaccinated against COVID-19 must be tested consistent with the requirements of Subsection (d). To establish that they are fully vaccinated against COVID-19, School Personnel must provide proof of full vaccination against COVID-19 to the School. Proof of COVID-19 vaccination may be met by providing one of the following: (1) a CDC COVID-19 vaccination record card or photograph of the card; (2) documentation of vaccination from a health care provider or electronic health record; or (3) state immunization records.
The Executive Order defines “School Personnel” to include:
any person who (1) is employed by, volunteers for, or is contracted to provide services for a School or school district serving students in pre-kindergarten through 12th grade, or who is employed by an entity that is contracted to provide services to a School, school district, or students of a School, and (2) is in close contact (fewer than 6 feet) with other persons in the School for more than 15 minutes at least once a week on a regular basis as determined by the School. The term “School Personnel” does not include any person who is present at the School for only a short period of time and whose moments of close physical proximity to others on site are fleeting (e.g., contractors making deliveries to a site where they remain physically distanced from others or briefly entering a site to pick up a shipment).
For any School Personnel who are not fully vaccinated by September 5, 2021 (ten days following the Executive Order), such individuals must undergo testing for COVID-19:
i. School Personnel who are not fully vaccinated against COVID-19 must be tested for COVID-19 weekly, at a minimum. The testing must be done using a test that either has Emergency Use Authorization by the FDA or be operating per the Laboratory Developed Test requirements by the U.S. Centers for Medicare and Medicaid Services.
ii. Such testing for School Personnel who are not fully vaccinated against COVID-19 must be conducted on-site at the School or the School must obtain proof or confirmation from the School Personnel of a negative test result obtained elsewhere.
iii. IDPH recommends that School Personnel be tested using a PCR test if available.
While we anticipate further guidance from ISBE and/or IDPH on these new requirements, there are several questions which must be considered as school district implement the Executive Order.
Which school personnel are covered by this requirement?
As noted in the definition above, “school personnel” include employees, volunteers, and contractors (and their employees) who would have close contact (within six feet for fifteen minutes or more) which any person (any person, not merely students) at a school at least once per week. Based on this definition, be sure to consider substitutes, coaches not otherwise employed by the school district, regular volunteers, and others who are reasonably anticipated to be at the school or other school events for more than fifteen minutes weekly.
Which employees of a school district’s contractors must comply with this requirement?
Because these requirements will also impact the employees of contractors, school districts should be engaging with those contractors as soon as possible so that the contractor can ensure that any of its employees who would spend more than fifteen minutes per week in close contact with another person at school are either fully vaccinated or complying with the testing requirement. School districts will need to reach agreement with contractors on sharing information, records maintenance, and consequences for non-compliance.
Which volunteers must comply with this requirement?
Any volunteer who would spend more than fifteen minutes per week at a school or school event, if that volunteer would be within six feet of another person.
How should the school district seek proof of vaccinations from school personnel?
To establish that they are fully vaccinated against COVID-19, school personnel must provide proof of full vaccination against COVID-19 to the school district. Proof of COVID-19 vaccination may be met by providing one of the following: (1) a CDC COVID-19 vaccination record card or photograph of the card; (2) documentation of vaccination from a health care provider or electronic health record; or (3) state immunization records.
Should the school nurse simply access records through iCare?
Based on confidentiality concerns, and because the Executive Order requires that school personnel provide this information to the school, employee vaccination records should not be accessed in iCare without consent of the employee.
If an employee refuses to or fails to provide proof of vaccination, are they required to undergo COVID-19 testing?
Yes. Any employee, volunteer, or contractor who has not provided proof of being fully vaccinated must undergo testing for COVID-19 at least once per week. The school district should establish a deadline each week for submission of test results for those employees who have not provided proof of vaccination.
If an employee is considered exempt from vaccination due to medical contraindication or sincerely held religious beliefs, must they still undergo testing for COVID-19?
Yes. Any employee, volunteer, or contractor who has not provided proof of being fully vaccinated must undergo testing for COVID-19 at least once per week, even if the reason they are not vaccinated is an exemption due to medical or religious reasons.
If an employee is not fully vaccinated and does not comply with the testing requirements, must we exclude them from work?
The Executive Order states:
Schools shall exclude School Personnel who are not fully vaccinated against COVID-19 from the premises unless they comply with the testing requirements specified in Subsection (d).
School personnel should be reminded of the choice of either submitting proof of vaccination or complying with the testing requirement or leaving the building. Follow your collective bargaining agreement and district policy manual in terms of process and consequences.
What are the bargaining implications of the Executive Order?
While the Executive Order creates a legal mandate with which school districts and their employees must comply (and with which no legal agreement may conflict), many of the details of the process impact working conditions and would be considered mandatory subjects of bargaining. School districts should be proactive in communicating with the bargaining representatives to consider any concerns and reaching agreement on details of the process, including particularly the details of the testing protocols.
Are we required to allow an employee who is not fully vaccinated and who does not comply with the testing requirements to work remotely?
Generally, no. However, pay close attention to any agreements reached with the union regarding working conditions during the pandemic.
Are we required to pay an employee who is not fully vaccinated and who does not comply with the testing requirements?
Generally, no. However, pay close attention to any agreements, collective bargaining agreements, memoranda of understanding, and potentially other practices regarding working conditions during the pandemic. Follow your collective bargaining agreement and district policy manual in terms of process and consequences, and remember requirements for progressive discipline as well as procedural and substantive due process.
Are we required to allow an employee who is not fully vaccinated and who does not comply with the testing requirements to access sick leave or other paid leave?
Not necessarily. But remember that every fact pattern is distinct, and that you will have to evaluate employee circumstances individually as they come up. Just because someone does not want to get vaccinated and is obstinate about rules does not mean, on any given day, that the employee is not ill. And if there are no limitations on use of certain leaves, there may be no basis to deny conversion of those leaves for such purpose. However, pay close attention to any agreements, collective bargaining agreements, memoranda of understanding, and potentially other practices regarding working conditions during the pandemic. Follow your collective bargaining agreement and district policy manual in terms of process and consequences, and remember requirements for progressive discipline as well as procedural and substantive due process.
Do we have to permit an employee who is not fully vaccinated to be tested during work hours?
Not automatically. However, pay close attention to any agreements reached with the union regarding working conditions during the pandemic.
Must the school district pay for the cost of a test for an employee who is not fully vaccinated?
Not automatically. However, pay close attention to any agreements reached with the union regarding working conditions during the pandemic. Follow your collective bargaining agreement and district policy manual in terms of process and consequences.
How must the school district maintain records related to vaccination and test results?
Asking for proof of a COVID-19 vaccination is permissible under the ADA and EEOC guidance because it is not likely to prompt the employee to provide disability-related information. However, the EEOC has warned employers to refrain from asking follow-up questions about why an employee did not receive a vaccination. Such inquiries may elicit disability-related information, according to the EEOC, and would be subject to the ADA's requirement that questions be "job-related and consistent with business necessity."
The EEOC has also explained that any documentation or other confirmation that employees provide about their vaccination status is considered medical information and must be kept confidential.
If employers require proof of vaccination, they should control access to the information and limit its use to the legitimate purpose related to the intended purpose only.
Which tests are acceptable for the employee testing requirements?
According to the Executive Order, the testing must be done using a test that either has Emergency Use Authorization by the FDA or be operating per the Laboratory Developed Test requirements by the U.S. Centers for Medicare and Medicaid Services. Also, the EO recommends, but does not require, the use of a PCR test. The IDPH Interim Guidance on Testing for COVID-19 in Community Settings and Schools:
Two kinds of tests are available for COVID-19: viral tests and antibody tests. Viral tests, including Nucleic Acid Amplification Tests (NAATs), such as SHIELD Illinois, POC NAATs, and antigen tests, such as Binax Now, are approved or authorized by the FDA and are recommended to diagnose current COVID-19 infection. The NAAT is the “gold standard” for clinical diagnostic detection of SARS-CoV-2. POC NAATs and antigen tests, including the BinaxNOW, usually provide more rapid results than the NAAT, but have a higher probability of missing an active infection. Therefore, it may be necessary to confirm an antigen or POC NAAT result with a laboratory based NAAT, especially if the result of the antigen or POC NAAT is inconsistent with the clinical perspective, i.e., a negative antigen test in a symptomatic individual or in a person who is a close contact to a confirmed or probable case.