A growing chorus of public health experts and educators are calling for COVID-19 vaccine mandates for teachers, but several states with high case rates ban such measures, and teachers unions have yet to change their policies surrounding them, creating a tricky situation as schools reopen.

The delta variant has swept the country in recent weeks, and pediatric COVID-19 infections are on the rise. During the week of Aug. 5, more than 93,000 pediatric COVID-19 cases were reported nationwide, according to data from the American Academy of Pediatrics — more than double the 38,654 pediatric cases that states reported two weeks earlier.

Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said the surge is reason enough for school districts to require COVID-19 vaccines for all school staff, although there will not be a federal mandate.

“We are in a critical situation right now,” Fauci said Tuesday morning on MSNBC while talking about vaccines for teachers. “This is very serious business. You would wish that people would see why it’s so important to get vaccinated.”

But as teachers face pressure to get the vaccine, state bans on COVID-19 vaccine mandates could protect unvaccinated school staff. In some cases, governors have refused to allow mask mandates. And in a group of states, legislatures passed bills this session to protect the unvaccinated. Most of those laws apply to state and local government entities, including public school teachers and staff.

Top teachers unions also are not on board with COVID-19 vaccine mandates despite comments from the American Federation of Teachers head Randi Weingarten that she personally supports such a move. About 70 percent of public school teachers nationwide were in a union during the 2016 school year, according to Education Department statistics.

Roughly 90 percent of teachers and school staff are vaccinated, according to the White House. But students under age 12 are not yet eligible to receive a vaccine, and in areas of the country with high transmission rates and overcrowded hospitals, that could be an issue.

“It’s inevitable that there will be a lot of cases in schools when they’re not doing the mitigation measures that we know work,” said Sean O’Leary, a Colorado-based pediatrician and vice chair of the American Academy of Pediatrics’ Committee on Infectious Diseases.

Legal snags

Declining to properly protect high-risk students from COVID-19 in the classroom could potentially be a violation of the Individuals with Disabilities Education Act and the Americans with Disabilities Act, said Laura Hatcher, a spokesperson for Little Lobbyists, an advocacy group that represents children with complex medical needs. The group is already involved in a lawsuit in Florida, where Republican Gov. Ron DeSantis refuses to allow schools to implement mask mandates.

Once vaccines are fully approved by the Food and Drug Administration, which officials have hinted will happen in the near future, it’s more likely that school districts will make a greater effort to mandate COVID-19 vaccines, Hatcher said. The FDA has thus far given only emergency authorization for the vaccines.

Schools already require teachers and students to have certain vaccines before they go into the classroom. But in the meantime, litigation may be one of the few ways to protect vulnerable children.

“I think it’s inevitable unless you have some of these officials stop playing partisan politics with our children’s lives. That would be great. But that doesn’t seem to show any signs of slowing right now,” Hatcher said when asked if she anticipates more lawsuits to protect vulnerable children from maskless or unvaccinated teachers.

Arizona, Arkansas, New Hampshire, North Dakota, Tennessee and Utah all passed legislation earlier this year to prevent government entities, including public schools, from requiring COVID-19 vaccines as condition of employment, according to the National Academy for State Health Policy. 

A Montana law prohibits discrimination based on vaccine status for both public and private employers as well as for educational opportunities. The law also prohibits requiring a vaccine that has not received full approval from the FDA. Ohio law also prohibits requiring a vaccine that hasn’t received full FDA approval. Oklahoma law prohibits public schools or institutions of higher education from requiring COVID-19 vaccines.

Several of these states, including Arkansas and Tennessee, are currently experiencing spikes in COVID-19 cases and hospitalizations.

All of these laws were passed during 2021 legislative sessions, a time of intense political polarization and a new stage of the pandemic’s trajectory. But now that cases are spiking among children, and it’s unlikely kids under age 12 will be able to access the vaccine for several months, it may be too late to change policies, short of calling special sessions.

“It is not my expectation based on where we are right now that these laws will change for the fall,” said Hemi Tewarson, executive director of the National Academy for State Health Policy.

Weingarten, who leads one of the largest teachers unions, also said delta’s spread requires a new perspective.

“The circumstances have changed,” Weingarten said Sunday on NBC, noting this was her personal opinion. But the union still has not changed its overall policy and says school districts must bargain with unions about vaccination requirements.

The nation’s largest teachers’ union, the National Education Association, encourages members to get vaccinated, but it doesn’t support mandatory vaccinations.

“We’ve always supported vaccinations; we’ve always recommended following the science and the CDC guidelines. But there are often complex medical issues at play, and we don’t presume to understand them all,” NEA President Becky Pringle said.

Other ways of encouraging shots

A growing number of private sector and government employees now must be vaccinated to return to work. New York, California and Virginia are requiring state employees to get the vaccine, and on Monday, the White House announced that all Department of Defense employees had until Sept. 15 to get vaccinated.

The California Department of Health on Wednesday instituted a public health order requiring school staff to get vaccinated or be tested once a week. It is the first state in the nation to do this. The state’s two major teachers unions, the California Teacher’s Association and the California Federation of Teachers, support the plan.

While some state laws and union contracts prevent county officials and school districts from requiring vaccines, there are other ways to increase vaccinations in schools.

School districts could implement voluntary weekly testing for both the vaccinated and unvaccinated and still be within their legal limits, Tewarson suggested. Education measures to help prevent transmission could also help keep the virus at bay in the classroom.

“Why we’re hemming and hawing about this, I have no idea. Ethically, you need to make sure you don’t die, make sure fellow teachers and people cleaning the rooms don’t die, and protect the kids,” said Arthur Caplan, founder of the Division of Medical Ethics at NYU School of Medicine.