With schools set to reopen in August 2021 amid a surge of COVID-19 cases, Los Angeles and New York City, the two largest school districts in the United States, both announced they would require all government workers, including teachers, to get the COVID-19 vaccine or face weekly testing. (1) Immediately, the legal challenges of implementing these vaccine mandates became apparent when several major unions stated that they needed to collectively bargain the specifics of such mandates with school district management. (2) While then-Mayor Bill de Blasio in New York faced opposition from several of the City's municipal unions, he initially received support from the United Federation of Teachers, the City teachers' union. (3) This would soon change as the City unilaterally changed the details of the policy without negotiations. (4) The question of which aspect of the vaccine mandates needed to be collectively bargained overshadowed school reopenings in New York, (5) Los Angeles, (6) and many major urban school districts across the country. (7)
Employers generally have the right to require vaccination, (8) and a growing number--either by persuasion or mandate--asked workers to get vaccinated against COVID-19 in August 2021 after the Food and Drug Administration (FDA) formally approved the Pfizer-BioNTech vaccine. (9) However, teachers' unions would potentially complicate the process of requiring vaccinations for school workers. Some questioned whether local collective bargaining agreements between school district management and teachers' unions would require the details of a mandate to be negotiated. (10) This scenario set the stage for a question of first impression in the courthouse and at the bargaining table in the late summer of 2021 as districts balanced union power and staffing realities with the need to create a safe school environment." Unions varied in their demands, which included how to address religious accommodations and medical exemptions, the frequency of testing for faculty and students regardless of vaccination status, payment for testing, salary increases, and fully remote work opportunities. (12)
This Note will study how two large urban school districts and teachers' unions negotiated school reopenings and health and safety protocols throughout the COVID-19 crisis. (13) This Note explores how school district management implemented a vaccination mandate in a public health emergency within the scope of their collective bargaining agreement (CBA) with local teachers' unions before the 2021 to 2022 school year. (14) Specifically, this Note examines whether school district management can mandate a no-opt-out vaccine policy for unionized public school workers, thus changing the terms and conditions of employment without bargaining. (15)
Unionized teacher CBAs are heavily negotiated (16) and affect a majority of U.S. public school teachers. (17) Negotiated teacher contracts today are "lengthy agreements that frequently are complex and impenetrable" and are controlled by state labor relations board decisions, arbitration rulings, and memoranda of understanding. (18) Teachers' unions are among "the most heavily unionized of all professions" (19) and remain political players as an interest group on national, state, and local levels. (20) They are more influential, on average, than all other entities in...