President Joe Biden’s plan to mandate COVID-19 vaccinations or weekly tests for workers at large employers will extend to many state and local government employees — including teachers and school district staff — but not in Louisiana.
Last week, Biden signed two executive orders that will require millions of people to get COVID vaccines as a condition of their employment. One applies to federal contractors and the other to federal employees. Biden also announced that he has ordered the federal Occupational Safety and Health Administration — the regulatory agency that enforces federal workplace safety standards — to develop a rule requiring workplaces with more than 100 employees to require vaccinations or weekly tests. Though many local and state governments, including school districts, meet that qualification, state and local governments in Louisiana, along with more than 20 other states, will not have to follow the rule.
That’s because OSHA doesn’t have automatic jurisdiction over state and local public employers. The federal Occupational Safety and Health Act specifically excludes them. (It also excludes the federal government, though a separate section of the law allows the agency to inspect federal workplace conditions. And federal employees are covered by Biden’s executive order on vaccines.) However, 26 states and two U.S. territories have opted into OSHA coverage by adopting state OSHA plans, which are overseen by the federal agency.
A spokesperson for the U.S. Department of Labor, of which OSHA is a part, confirmed that those states will fall under the vaccine rule, called an Emergency Temporary Standard, or ETS.
Along with private sector employees, “The ETS will also apply to public sector state and local government workers, including educators and school staff, in the 26 states and two territories with a state OSHA plan,” OSHA spokeswoman Denisha Braxton told The Lens in an email this week.
Louisiana, however, isn’t one of those states.
Late last month, Gov. John Bel Edwards announced that he intends to require vaccinations or weekly tests for thousands of state workers. (Several statewide elected officials have said they won’t require them for their workers.) But that wouldn’t apply to local governments.
Infectious disease epidemiologist Dr. Susan Hassig, who works at Tulane University, said it’s unclear how the lack of a mandate for public employees will affect the state.
“It becomes more relevant when we’re looking at local jurisdictions and local government entities, especially in areas where they have been less receptive to coronavirus. I kind of lump them in with the unvaccinated,” she said. “I don’t really know if it makes a substantial enough difference epidemiologically to need some special treatment. I guess the proof would be if we have outbreaks on the local government level.”
But one area where mandatory vaccinations could make a difference, she said, is when children are involved.
“I would be epidemiologically most concerned about teachers and staff in education settings that are unvaccinated, if they are not in fact covered by the OSHA regulation, because we have everyone 12 and under that doesn’t have a chance to be vaccinated. They are incredibly vulnerable,” she said. “And we still have a lot of Delta circulating.”
Federal Vaccine Mandate
Biden announced his sweeping mandate last week, amid the ongoing delta variant surge. Braxton, from the Department of Labor, told The Lens that the rule in development will affect a huge number of workplaces.
“This requirement will impact over 80 million workers in private sector businesses with 100+ employees,” a spokesperson for the federal agency wrote in an email.
It will also require employers with more than 100 employees to provide time off for employees to receive and, and if necessary, recover from the vaccine. The rule is still in development, though it is expected to be released soon. The agency did update some COVID-19 guidelines on Monday.
Though the federal rule won’t apply to state or local government workers in Louisiana, state and local governments can adopt their own, as Edwards announced he would last month.
“The Governor’s current strategy, now that the Pfizer vaccine has full FDA approval, is to require proof of vaccination or routine COVID testing for all state employees in executive branch cabinet agencies, which represent the majority of state government workers in Louisiana,” spokeswoman Christina Stephens wrote in a Tuesday email. “It’s incredibly important that we get as much of our workforce working safely in person to serve the people of Louisiana.”
But it doesn’t represent the majority of parish, municipal or school board employees across the state if they don’t work in places where local leaders have issued their own mandates.
Asked how the Louisiana Department of Education interpreted the mandate and how it would apply to traditional school districts and charter schools, spokesman Matt Johnson addressed the executive order, not the proposed OSHA rule.
“LDOE’s legal counsel has indicated that the vaccine mandate applies to staff who work for federal agencies.”
Local municipalities can also have their own requirements — both the city of New Orleans and the NOLA Public Schools district have mandated vaccines for their employees. But outside of New Orleans, vaccine mandates in local parish government or school districts in the state are rare.
Charter schools present a unique challenge
In the New Orleans school system, the vaccine mandate is further complicated by the decentralized district’s charter schools. Superintendent Henderson Lewis Jr.’s mandate only applies to those directly employed by the district, about 200 people, covering central office employees and some special education and other staff who do site visits. Those employees must show proof of vaccination by the end of month.
The thousands of other school employees in the city work for private nonprofit organizations that run charter schools. Those nonprofits can set their own requirements.
All New Orleans high schools require staff to be vaccinated — they’re also requiring students participating in extracurriculars to receive the vaccine as well. At least 14 charter groups, including larger networks such as KIPP New Orleans Schools and InspireNOLA Schools, are requiring the vaccine for employees.
Several of the larger charter school organizations in New Orleans will surpass the 100 employee minimum set in Biden’s mandate. Charter schools are publicly funded but run by private nonprofit groups. It’s possible that they could be treated as private employers, falling under the vaccine rule.
OSHA has won at least one federal court ruling in Florida against a charter school that claimed it was a state political subdivision and thus outside of OSHA’s jurisdiction. And in a recent case involving an attempted union drive at the International High School of New Orleans, the U.S. Court of Appeals for the Fifth Circuit found that the school was not a political subdivision.
The Louisiana Association of Public Charter Schools is working to understand how the mandate might affect charter schools, CEO Caroline Roemer wrote in an email Monday.
“Schools (and LAPCS) are awaiting further guidance from USDOE and LDOE on the matter since nothing was specifically said about schools.”
While the potential applicability of the proposed rule is worked out, Hassig said that it’s important for school employees to follow current guidelines, such as Edwards’ statewide mask mandate, which does apply to public places, including businesses, charter schools and traditional schools.
She said that’s especially important now, as schools across the region begin to reopen after closing down for Hurricane Ida.
Epidemiologists are concerned that evacuations to hotels and with extended families, as well as emergency post-storm gatherings — at cooling centers, shelters and food kitchens — could result in higher COVID transmission. On top of that, the data the state collects on COVID is likely going to be less reliable, at least temporarily, because testing has dropped in the wake of the storm.
“Case counts are probably not the best marker because of how much infection is in a community because there is so little testing post storm,” Hassig said, noting the National Guard had shifted its efforts away from COVID-19 testing into Hurricane Ida relief.
“We are once again going to have a relatively limited view on where infection really is and looking at people presenting with symptoms is probably going to be our best information.”
