On March 25th, Rutgers University became one of the first universities to announce that it will require students enrolling for the 2021-2022 school year to be vaccinated against COVID-19. So far, Rutgers has not extended this mandate to faculty and staff but is urging all faculty and staff to be immunized as soon as possible. Rutgers announced that the vaccine requirement will not apply to students who are enrolled in online programs, and in-person students will be able to seek a vaccine exemption for medical or religious reasons. As the start of the fall 2021 semester nears, we anticipate other schools may follow Rutgers’s lead, although some large universities, including the University of Oklahoma, have already announced they will not be requiring the vaccine for students, faculty, or staff, but highly encouraging it.
Requiring students to be vaccinated before coming to campus is nothing new. In Connecticut, secondary and post-secondary schools already require that students be immunized against certain illnesses such as measles and chickenpox as a condition of enrollment. However, the COVID-19 has not yet been included on mandatory immunization schedules for students and notably remains approved by the FDA pursuant to Emergency Use Authorization (EUA) only. While EEOC guidance appears to support employers who decide to mandate vaccines for employees, it remains unclear how a court might view a mandate that is linked to a vaccine that is authorized under the more limited EUA of the FDA. That could soon change, as there are at least two pending cases–one in New Mexico and one in California–in which employees have challenged their employer’s authority to require employees to be immunized based on its EUA status. What does appear to be clear, however, is that even if schools mandate the COVID-19 vaccine, educational institutions must still recognize exemptions for medical and religious reasons.
Even if it is determined that it lawful to mandate vaccines, educational institutions must still consider whether they should require the vaccine. Whether an institution should require the vaccine involves a number of practical considerations, such as student demographics, the availability and accessibility of vaccines for students and whether the school is actually prepared to exclude unvaccinated students. Schools must also carefully consider their processes for requesting and granting exemptions and ensure they have a fair and equitable process to respond to such requests. Finally, another question that has been posed by some educational institutions is the degree to which they can take into account an individual’s vaccination status in developing health and safety protocols on campus. As more individuals become vaccinated, the CDC has just begun to issue guidance that differentiates between those who are vaccinated and those who are not. However, it is important to note that to date, current guidance from OSHA continues to advise that employers should not distinguish between workers who are vaccinated and those who are not, and that mitigating measures like face masks and social distancing should remain in place for all employees regardless of vaccination status. This guidance may be helpful for schools as they consider their approach to the COVID-19 pandemic going forward.
Federal and state guidance continues to evolve in this area, and courts may soon weigh in on the legality of requiring a EUA vaccine. As schools prepare for the 2021-22 school year, they should be cognizant of both the legal realities surrounding the vaccine and the practical considerations to enforcing a vaccine requirement.