United States: College COVID-19 Vaccine Requirements: Legal Issues To Consider

A growing number of colleges and universities have announced they will require students, faculty, and/or staff to receive a COVID-19 vaccine as a prerequisite for attending the institution for the 2021-2022 academic year.¹ Higher education institutions that have announced such plans include public universities such as the University of California and California State systems and private colleges such as Georgetown and Yale. Vaccine requirements are already ubiquitous in higher education ² , however, colleges and universities should be aware of important issues to consider when deciding whether and how to mandate COVID-19 vaccination. Counsel for an anti-vaccine group, the Informed Consent Action Group, has already sent Rutgers, the first university to announce such plans, a formal letter asking the school to rescind the requirement. ³ While such requirements are likely to be upheld, legal challenges appear inevitable.

According to the CDC as of May 4, 2021, more than 247 million COVID-19 vaccines have been administered to the United States population, resulting in 44.5% of the adult population having received at least one dose of the vaccine, and 32% of the population being fully vaccinated. ⁴ Though all three of the COVID-19 vaccines authorized for use in the United States are under Emergency Use Authorization (EUA)-meaning none yet have full FDA approval-all three vaccines "have been shown to be safe and effective at preventing COVID-19." ⁵

COVID-19 has had an enormous impact on higher education. While many colleges and universities have resumed some in-person activities using safety measures including testing, masks, and social distancing, vaccination offers the best chance to more fully reopen. ⁶ Particularly for students living in congregate on-campus settings, vaccination holds the most promise for stopping the spread of COVID-19 and protecting students and community members from severe illness. ⁷

Below, we identify some of the salient legal issues colleges and universities should consider when deciding whether and if so, how, to mandate COVID-19 vaccination.

Courts have upheld vaccine mandates, without religious or moral exemptions, for more than a century. However, the absence of religious exemptions in light of recent trends in Supreme Court jurisprudence, increases litigation risk for colleges and universities, particularly public institutions.

The Supreme Court held that states can mandate vaccination under their police power in the seminal case of Jacobson v. Massachusetts. ⁸ The case continues to provide the foundation for the deference courts show to state measures taken to protect public health. However, some of the traditionally more conservative justices have demonstrated a growing hostility toward Jacobson signaling that courts in the future may provide less deference to public health measures. ⁹

In the employment context, employers (including colleges and universities) are required to provide medical-based exemptions under the Americans with Disabilities Act (ADA) and exemptions based on sincerely held religious beliefs under the Civil Rights Act. ¹⁰ The undue hardship standard under which an employer could lawfully deny such an exemption is easier to meet under the Civil Rights Act than the ADA. Employers must make reasonable accommodations for employees who claim exemptions. If colleges and universities choose to model a student vaccine requirement on these principles, increased testing, limits on on-campus living, or even a requirement that the student continue to attend school remotely are all potential accommodations. ¹¹ The accommodations chosen should be strongly linked to the public health risks posed by unvaccinated students in order to put the institution on the strongest footing in the event of a legal challenge. And, needless to say, the extent of an accommodation should be carefully tailored to the reason an accommodation is sought.

To view the full article please click here.

Footnotes

1 Andy Thomason, Here's a List of Colleges That Will Require Students or Employees to Be Vaccinated Against COVID-19, Chronicle of Higher Education (last updated May 5, 2021), https://www.chronicle.com/blogs/live-coronavirus-updates/heres-a-list-of-colleges-that-will-requirestudents-to-be-vaccinated-against-covid-19.

2 Leila Barraza et al., Immunization Laws and Policies Among U.S. Institutes of Higher Education, Journal of Law, Medicine and Ethics (2019), https://repository.arizona.edu/bitstream/handle/10150/633759/JLME_Higher_Ed_Vac_ReqBarraza_Hodge_et_al.pdf?sequence=1.

3 Megan Zahneis, Anti-Vaccine Group Challenges Rutgers U.'s COVID-19 Vaccination Requirement, Chronicle of Higher Education (Apr. 22, 2021), https://www.chronicle.com/blogs/livecoronavirus-updates/anti-vaccine-group-challenges-rutgers-u-s-covid-19-vaccination-requirement.

4 COVID-19 Vaccinations in the United States, Centers for Disease Control (data as of May 4, 2021), https://covid.cdc.gov/covid-data-tracker/#vaccinations.

5 Benefits of Getting a COVID-19 Vaccine, Centers for Disease Control (last updated May 4, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/vaccine-benefits.html.

6 Requiring (Or Urging) COVID-19 Vaccinations At Colleges And Universities For Fall 2021, American Council on Education (March 2021), https://www.acenet.edu/Documents/Issue-Brief-COVID-VaccinesMarch-2021.pdf; Elizabeth Redden, Vaccine Mandates: The Next Political Battlefront, Inside Higher Education (Apr. 8, 2021), https://www.insidehighered.com/news/2021/04/08/some-colleges-confrontpolitical-headwinds-adopting-covid-vaccine-mandates.

7 Science Brief: Background Rationale and Evidence for Public Health Recommendations for Fully Vaccinated People, Centers for Disease Control (last updated Apr. 2, 2021), https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/fully-vaccinated-people.html#:~:text=Preliminary%20data%20from%20Israel%20suggest,viral%20load%20than%20unvaccinated%20people.&text=This%20observation%20may%20indicate%20reduced,a%20key%20driver%20of%20transmission https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/fully-vaccinatedpeople.html#:~:text=Preliminary data from Israel suggest,viral load than unvaccinated people.&text=This observation may indicate reduced,a key driver of transmission.

8 Jacobson v. Massachusetts, 197 U.S. 11 (1905).

9 See e.g., Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 69-72 (2020) (Gorsuch, J., concurring).

10 What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (December 16, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-adarehabilitation-act-and-other-eeo-laws; Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, EEOC (Oct. 9, 2009), https://www.eeoc.gov/laws/guidance/pandemic-preparednessworkplace-and-americans-disabilities-act.

11 I. Glenn Cohen and Dorit Rubinstein Reiss, Can Colleges and Universities Require Student COVID19 Vaccination? Harvard Law Review Blog (Mar. 15, 2021), https://blog.harvardlawreview.org/cancolleges-and-universities-require-student-covid-19-vaccination/.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.