In a possible first around Philly, Upper Merion teachers and staff must get vaccinated or take two COVID tests each week

In what appears to be one of the first moves by a Philadelphia-area district to impose rules around employee vaccination, the Upper Merion Area School District will require teachers and staff to get vaccinated or wear a mask and submit to routine COVID-19 testing this fall.

The school board voted 8-0 Monday night in favor of the plan, which will direct teachers and staff to show proof of vaccination. If they don’t, they will have to wear a mask and be tested twice weekly.

“I kept thinking: I have an obligation to do everything I can to ensure that our kids are safe and healthy,” said board president Gary Ledebur, who proposed the policy.

Those involved in the move by the 4,500-student Montgomery County district see it as potentially precedential as schools across the region prepare to reopen amid a rise in coronavirus cases and concerns over the delta variant — factors that have spurred some larger systems nationally to impose requirements around vaccination.

New York City Mayor Bill de Blasio announced last week that teachers there must be vaccinated by the start of the school year or be tested weekly under a mandate covering all city workers. On Monday, Denver said that all of its employees, including teachers and school staff, must be fully vaccinated by Sept. 30.

Philadelphia Superintendent William R. Hite Jr. said Friday that the district was evaluating the legality of imposing a vaccine requirement on staff. “We have not gone that route yet, on advice from counsel,” he said. “When we can mandate it, we will.”

The Pennsylvania School Boards Association has advised boards that employers can legally mandate vaccination but that they “must recognize and comply with their duty to reasonably accommodate an employee’s disability or sincerely held religious belief,” said spokesperson Annette Stevenson.

“As with many of the issues school leaders are currently faced with, it’s a complex one,” Stevenson said.

Upper Merion’s vote seemed to be the first of its kind among the dozens of school districts across the region now getting ready to resume classes. The board’s lawyer, Jeffrey Sultanik, said its action stopped short of a vaccine mandate, avoiding the need for collective bargaining with its unions. The measure was supported by the union representing the district’s teachers and other professional staff.

Sultanik, whose firm represents two dozen Pennsylvania school districts and has worked for more than 130, said it was his opinion that mandating the vaccine without allowing Upper Merion district employees a testing option would require union approval — possibly presenting hurdles. (Upper Merion will engage in impact bargaining with its unions over logistical issues, like when and where employees will be tested.)

“What you’re seeing play out is the division between unionized and nonunionized workplaces,” he said of the national patchwork of mandates.

The New York State United Teachers union said Monday that it would not support a vaccine mandate, even as Gov. Andrew Cuomo suggested he would consider one “if the numbers go up.” (The union did voice support for programs requiring teachers to be tested if they aren’t vaccinated.)

“How many kids does a teacher interact with in the course of a day? Thirty, 40, 100, 150?” said Cuomo, who said school districts “should say today: Teachers, vaccine or test, if you are in a CDC high-risk area.”

In Pennsylvania, the state’s largest teachers’ union said it doesn’t have a position on requiring vaccinations. But “we are encouraging our local leaders to work with school districts in order to make sure that our schools are as safe as possible for the school year,” said David Broderic, spokesperson for the Pennsylvania State Education Association. He didn’t know what share of Pennsylvania teachers had been vaccinated, but noted that 112,000 school employees received shots through the state’s program this spring.

In Upper Merion, Stephen M. Kozol, president of the local teachers’ union, said he and his association “thoroughly support the desire to protect the health and safety of both the students and the employees who work there. Honestly, we really appreciate the effort to do so.”

A longtime history teacher and former lawyer, Kozol said that when he learned of the proposal to require vaccinations or testing, he felt it was his duty to investigate its legality. “I came to the conclusion that in fact they can do that,” he said. He said he will support the effort while advocating for the rights of his 375 members, including around when testing of unvaccinated employees would take place.

“It’s certainly possible” that some people may be uncomfortable with the new requirements, Kozol said. “But I don’t think it will be a very significant portion of our membership.”

Ledebur, the board president, said an estimated 80% of Upper Merion teachers are vaccinated; Kozol said that figure may be outdated. Among other employees — including custodians and food service workers — about 60% are estimated to be vaccinated, according to Ledebur. The Teamsters local representing some of those employees could not immediately be reached for comment Tuesday.

The district plans to survey employees on their vaccination status, with responses required by Aug. 13. Those who don’t respond will be deemed to be unvaccinated, according to the resolution passed by the school board — which also states that if the district decides to require that students wear masks, administrators will be “empowered to make modifications to the school discipline code” to address how masking violations will be handled.

Some voiced concern during Monday’s meeting about whether the new requirements would have broader implications. “Isn’t it essentially a mandate — the people who aren’t going to get vaccinated are pretty much ostracized?” a mother of three asked the school board, questioning whether such requirements would then be extended to students.

Sultanik said the situation involving students was “much different,” because children under 12 aren’t currently eligible to receive the vaccine.

The board also heard from a resident who asked why the district should “suffer the cost of individuals who choose not to be vaccinated,” and suggested the union or employees pay for the twice-weekly testing. Ledebur estimated the cost of the testing would be “minimal.”

In an interview, Ledebur said he was struck by a recent trip to Jamaica. “The people in Jamaica can’t get vaccine, and can’t understand how us Americans aren’t getting vaccinated,” he said. He said he brought the question to Sultanik, the district’s lawyer, thinking, “I may not prevail, but I’m at least going to try.”

During Monday’s meeting — when the board also remembered a 20-year-old graduate, Neil Patel, who died this weekend of COVID complications — Ledebur called the vaccine issue a question of “collective responsibility vs. individual rights.”