The All-Island School Committee (AISC) heard from their attorneys Wednesday evening about different approaches to mandating vaccines within the student and staff population.
According to the lawyers, the general consensus around mandating vaccines in an educational institution is that it would be possible, although in ideal circumstances the school would follow the local boards of health in making the decision.
Additionally, there are several exemptions related to physical and mental health, and students and staff could also be exempt for religious reasons.
Braintree-based school and education attorney Paige Tobin provided a written opinion issued by her firm to the committee, and went through some bullet points on mandating vaccines for students. She highlighted case law from 1907, when a school district that was combating smallpox was allowed by the Supreme Judicial Court of Massachusetts to exclude from attendance all unvaccinated children.
The law itself refers to school districts implementing health and safety measures beyond the statewide minimum immunization standards established by the Department of Public Health.
But Tobin noted that there isn’t any recent case law regarding mandating vaccines in schools, and the most recent case was in 1921. “It’s never been overturned, but there isn’t any current law that confirms it,” Tobin explained.
She noted that the Centers for Disease Control (CDC) guidance identifies vaccines as being the primary mitigation tool for stopping the spread of COVID. The Department of Elementary and Secondary Education (DESE) current guidance does not address vaccines, and Tobin said it will not issue guidance to that effect before the start of the school year.
Tobin suggested that any decision to mandate vaccines would be stronger if the local boards of health were in support and it was upon their recommendation.
She also urged caution when considering the significant equity issues related to vaccination, and urged the school to look into disparities of access among different racial and ethnic groups in the school population.
Employment and labor attorney Sean Sweeney said that under federal antidiscrimination laws, employers can require vaccination as a condition of accessing the workplace. He noted requirements for the schools to entertain requests for accommodations for employees who have a disability or some medical reason for not being vaccinated. Similarly, if someone has a strongly held religious belief, it could also preclude them from being vaccinated.
Sweeney said state antidiscrimination laws are less clear, but he is confident that state law would authorize a vaccine mandate.
He referred back to the smallpox case brought up by Tobin, and said he shares her recommendation that any vaccine mandate be done in collaboration with the boards of health. “They are deemed as the board that is most in tune to what is happening in the community, what the spread numbers look like, and what the degree of vaccination is within the community,” Sweeney said.
In the near future, the AISC will meet around the same time as the Food and Drug Administration (FDA) provides further guidance regarding federal approval of the vaccine. The FDA has authorized the vaccine for emergency use — it is yet to be fully approved.
Masks off outside
Upon recessing the AISC meeting, Edgartown and Oak Bluffs voted to revise their mask policy to allow staff and students to take their masks off when outdoors — following other districts that voted to amend the mask policy at the prior meeting of the AISC.
While the Edgartown school committee was meeting to approve the change to the mask mandate, chair Kelly McCracken and member Louis Paciello were the only two remaining representatives to vote on the matter.
McCracken called for a motion to approve, to which Paciello said, “Oh, I should make the motion? Well I am going to have a hard time making a motion for an amendment on a mandate I don’t believe in.”
He asked if it was possible to make a motion to allow students to not wear masks inside, to which D’Andrea said he doesn’t think it is wise to take a vote on a matter that was not formally posted in the agenda.
A mask policy has been in place since November 2020, according to D’Andrea, who spoke to The Times in a separate phone conversation. The policy was put in place when officials decided to implement a mandate with the condition that they could rescind it if figures looked promising.
Initially, schools were monitoring the case rates and hoped they would be able to return to school in the fall with no masks, but based on current circumstances, that would be unwise, D’Andrea said.
He noted that the CDC and the American Academy of Pediatricians came out with guidance that students and staff in schools should wear masks.
Recently, the Massachusetts Medical Society and the Massachusetts Academy of Family Physicians issued a joint statement urging Gov. Charlie Baker to require masks indoors “for all who learn in, work in, or visit schools, regardless of vaccination status.”
The statement continues, “Masking is a public health measure proven to reduce the transmission of COVID-19, and decreasing transmission is critically important now, as data have shown an increase in the number of children and adults who have contracted the easily transmissible delta variant of the virus.”