Yesterday, President Biden announced a national strategy aimed at combating COVID-19. President Biden’s COVID-19 Action Plan includes the following strategies:

  • Requiring all employers with 100 or more employees to ensure their workers are vaccinated or tested weekly. The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. The rule will also require these employers to provide paid time off for the time it takes for workers to get vaccinated or to recover post-vaccination.

    This rule will not apply to Ohio public school districts. The definition of “employer” in the Occupational Safety and Health Act of 1970 (“OSH Act”) excludes “any state or political subdivision of a state.” Since school districts are political subdivisions of the state of Ohio, they are not considered “employers” under the OSH Act and are not subject to OSHA’s federal regulation, inspection or enforcement. Although some states have adopted state-level OSHA-approved workplace safety plans that subject them to OSHA’s federal regulations, Ohio has not adopted a state OSHA plan.

  • Requiring staff in Head Start and Early Head Start Programs to be vaccinated. President Biden’s plan requires that teachers and staff at Head Start and Early Head Start programs get vaccinated. The Department of Health and Human Services (HHS) will initiate rulemaking to implement this policy. Districts with Head Start and Early Head Start programs will be affected by this part of the plan.
  • Calling on all states to adopt vaccine requirements for all school employees. President Biden’s plan calls for Governors to require vaccinations for teachers and school staff. Ohio is not currently one of the states that have vaccination requirements in place for k-12 school staff. There is no incentive or sanction explicitly attached to this effort in the plan. President Biden’s plan did not mention vaccine mandates for schoolchildren, but the administration did say it will work to provide resources to the Food and Drug Administration to support the swift review and approval of a vaccine for children under 12.
  • Getting students and school staff tested regularly. President Biden’s plan calls on schools to set up regular testing in their schools for students, teachers, and staff consistent with CDC guidance. CDC currently recommends that screening testing be offered to students who have not been fully vaccinated when community transmission is at moderate, substantial, or high levels. It also recommends that screening testing be offered to all teachers and staff who have not been fully vaccinated at any level of community transmission. President Biden’s plan provides few details about how his administration will push for expanded school testing efforts, but stated that the CDC and HHS “will continue to provide assistance to schools to accelerate the establishment of screening testing programs in all schools.” In April, HHS provided $10 billion in funding for COVID-19 screening testing for teachers, staff and students in k-12 schools.

OSBA will continue to monitor developments at both the state and federal level that relate to President Biden’s COVID-19 Action Plan. If you have questions in the meantime, please reach out to OSBA’s Division of Legal Services or your board attorney.

Posted by Sara C. Clark on 9/10/2021