President Joe Biden’s six-part plan to address surging COVID-19 rates includes a route to create new teacher vaccination and testing requirements, even in some states where governors have not moved to set their own mandates.

The plan, which Biden announced Thursday, calls on the Occupational Safety and Health Administration to create an emergency rule that would require workplaces with more than 100 employees to require vaccination or weekly testing. While Biden’s speech framed that rule as applying to private employers, it will also apply to public employees, including K-12 educators, in the 26 states and two territories that have state-level OSHA-approved workplace safety plans, a U.S. Department of Labor spokesperson confirmed.

“To a certain extent, this takes some pressure off of superintendents in those states to make those decisions,” said Noelle Ellerson Ng, the associate executive director of AASA, the School Administrators Association.

The federal agency’s rule could set the stage for further political confrontation in some states that have prohibited vaccine requirements, including those set by school districts.

White House officials said Friday that the agency would release the rule “in coming weeks.”

OSHA’s authority and what applies to public schools

Public schools are not subject to OSHA’s federal regulations, but states that set their own OSHA-approved plans have broader rules that apply to public employees, according to a February 2021 report by the Congressional Research Service that explains how OSHA’s COVID-19 rules apply to schools.

In response to questions from Education Week, a spokesperson for the U.S. Department of Labor issued a statement that said the agency will draft an Emergency Temporary Standard that requires workplaces with more than 100 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 employers with more than 100 employees to provide “paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.”

That Emergency Temporary Standard “will apply to public sector state and local government workers, including educators and school staff, in the 26 states and two territories with a state OSHA plan,” the spokesperson said.

How many teachers the rule will affect is unclear.

The jurisdictions with state-level plans include all 11 states and territories that already either require teachers to be vaccinated or offer the choice between vaccination and weekly testing, according to a tracker compiled by Education Week. Those jurisdictions are California, Connecticut, Hawaii, Illinois, New Jersey, New Mexico, New York, Oregon, Washington, Puerto Rico, and the District of Columbia.

Four states with state-level OSHA plans—Arizona, Indiana, Iowa, and Tennessee—currently prohibit school districts from requiring teacher vaccinations, bans that may be overridden by the new federal rule. The remaining states with their own OSHA plans have left decisions about vaccine requirements to school districts.

There are some outstanding questions about how the OSHA rule will be applied to schools, said Francisco Negrón, chief legal officer for the National School Boards Association. For example, smaller rural districts may fall under the 100-employee threshold, but their workers may be included in the requirement if they are considered state employees, as they are under some other federal rules.

The rule may also introduce new vaccine-or-test requirements nationwide for privately contracted school workers, like bus drivers and food service employees, depending on how their employment is classified. That could cause some staffing concerns for schools that have struggled to recruit and retain workers if contracted employees refuse to comply.

Even in states that don’t currently require teacher vaccinations, polling suggests that many teachers may already be vaccinated. Nationally, 87 percent of teachers have been vaccinated against COVID-19, according to a nationally representative survey conducted by the EdWeek Research Center in July and early August. And both major national teachers’ unions say about 90 percent of their members have been vaccinated.

Private school vaccine-or-test requirements for teachers

The new OSHA rule will also apply to private schools nationwide.

Private schools “are subject to federal OSHA jurisdiction, as are some charter schools, depending on their administrative structure and governance,” said the Congressional Research Service report.

That means the vaccine-or-test requirement will apply to private schools with more than 100 employees, said Myra McGovern, the vice president of media for the National Association of Independent Schools.

That’s significant because some state-level virus-mitigation strategies apply to public schools, not private ones.

Biden encourages state teacher vaccine mandates

What about the states without their own OSHA plans that will not be covered by the new rule?

In his speech Thursday, Biden urged governors to adopt teacher vaccine requirements, but he did not introduce new incentives for them to do so or penalties if they do not.

“Vaccination requirements in schools are nothing new,” Biden said. “They work. They’re overwhelmingly supported by educators and their unions.”

Some Republican governors were quick to label Biden’s plan as overreach, some threatening potential legal action Friday.

Reporters asked Biden about those threats as he toured a Washington, D.C., school alongside U.S. Secretary of Education Miguel Cardona Friday.

“Have at it,” he said.