Biden’s new vaccine-or-test rule will apply to some school districts, too

A young woman wearing a pink shirt and white surgical mask receives a vaccine from a medical professional, who is wearing a plastic surgical suit and mask.
A mobile COVID-19 vaccine clinic set up to inoculate Los Angeles school district employees and students. (Mel Melcon / Los Angeles Times via Getty Images)

Large swaths of the country’s public school employees could be required to get vaccinated against COVID or regularly tested under rules being rolled out by the Biden administration.

Due to the way the Occupational Safety and Health Administration works with states, the requirement would apply to public school districts in 26 states. 

A number of those states already have vaccine-or-test rules for teachers and public school employees. But about a dozen — including Michigan, Indiana, and Tennessee — don’t, and will soon be required to adopt rules that are “at least as effective” as OSHA’s. Those rules would then apply to employees of school districts in those states with 100 or more employees. 

This would mean new requirements for roughly one in four public school employees nationwide, estimates Nat Malkus, a fellow at the American Enterprise Institute, a conservative think tank. How effectively the rules will be enforced remains unclear, however, and the new regulations must clear a thicket of legal challenges. 

“There are a lot of wrinkles,” said Malkus.

President Biden announced plans for a workplace vaccine-or-test mandate in September, and details were released this week by OSHA. 

Under the rule, private employers with 100 or more workers would have to ensure that employees are either fully vaccinated against COVID by Jan. 4 or submit weekly test results. Unvaccinated workers will also be required to wear masks in the workplace. 

In many states, these regulations would directly apply to private companies with 100 or more employees, including private schools, but would not apply to public agencies.

A number of other states would have to update their own plans with a comparable version of the OSHA rule — which would apply to public schools. School districts would be in charge of enforcing the rules, with the state providing oversight and responding to complaints.

The complicated patchwork of new regulations speaks to the Biden administration’s far-reaching effort to pressure more Americans to get vaccinated. “It’s the administration taking advantage of whatever levers they can find,” said Malkus.

Biden argues that the rules are essential to halt the spread of COVID and boost the economy. “While I would have much preferred that requirements not become necessary, too many people remain unvaccinated for us to get out of this pandemic for good,” he said Thursday.

Public health experts say that high vaccination rates in schools can help reduce COVID spread and avoid disruptions to school. A handful of school districts that have imposed their own vaccine requirements without a testing option have seen high rates of vaccination. But other districts have struggled to stick with a tough mandate while facing political pushback and staffing challenges.

Meanwhile, Republicans have argued that the new rules amount to a federal government overreach and impinge on personal medical decisions. They have vowed to challenge the move in court.

“If your expansive reading of the law succeeds, the American people can expect further abuses, as it is hard to imagine any requirement that the law would not allow,” 24 Republican attorneys general wrote in a September letter to Biden. “You will fail in court.”

On Thursday, Indiana Gov. Eric Holcomb directed the state’s labor department to work with the attorney general to bring a lawsuit. “This is an overreach of the government’s role in serving and protecting Hoosiers,” he said

That underscores the question of whether states will actually move to adopt the new rules, as required, and how vigorously they will be enforced.

“This is going to be the first test of that rule: which states comply and amend their plans?” said Julia Martin, an education lawyer. “And which states enforce that new amended part of the plan?”

OSHA threatened last month to remove authority from three states that it said had not adopted required COVID safety rules. If the federal government does take over workplace safety enforcement in a given state, the rule would no longer apply to public schools.

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