‘If a student chooses to come to an institution, they agree to abide by the rules’: Can colleges be forced to mandate COVID-19 vaccines?

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‘If a student chooses to come to an institution, they agree to abide by the rules’: Can colleges be forced to mandate COVID-19 vaccines?


As New York releases its first digital COVID-19 vaccine passport Monday, questions surrounding COVID 19-era college vaccine “passports” continue to plague students, parents and university leaders. 

Now, with hope building that we could soon be returning to some semblance of pre-pandemic life, universities are grappling with a new dilemma: Whether to require students to get vaccinated. 

Rutgers University is among the first college to publicly wade into this question when officials announced Thursday that they would require students enrolled for the Fall 2021 semester to be vaccinated against COVID-19.


Rutgers University is among the first college to publicly require students enrolled for Fall 2021 to be vaccinated against COVID-19.

Students can seek a religious or medical exemption from the requirement, and students participating in fully online or continuing education programs won’t have to abide by the mandate. 

So far there’s no legal precedent to know how courts will view an institution’s response to a student or employee refusing a COVID-19 vaccine under emergency-use status, Reiss said.

But we’ll soon find out how some view it: A New Mexico corrections officer and a group of Los Angeles public-school teachers are currently suing their employers over the issue. 

Other universities — including those in Wisconsin and Oklahoma — have said they will leave it up to the students whether to get vaccinated, or not.

“COVID-19 vaccines are not required at this time for faculty, staff, or students. However, OU strongly encourages everyone to give full consideration to getting the vaccine. As an Emergency Use Authorized measure, the current COVID-19 vaccinations may not be mandated for employees or students,” the University of Oklahoma said in a statement.

“I think if it’s mandated people are going to be forced to get it, but a lot of us are already starting to get it,” first-year student Imoni DeJesus in Milwaukee, Wisc., told WISN 12. “I can probably say confidently half of my building is already probably vaccinated.”


‘We’re looking at every tool we could possibly have to create the safest possible campus in America.’


— Antonio Calcado, executive vice president at Rutgers University

It’s also too early to say exactly what the campus experience will look like in the fall, said Antonio Calcado, executive vice president and chief operating officer at the school, but even if students in typically in-person programs are doing some of their coursework online, they will need to be vaccinated, he said. 

“We’re looking at every tool we could possibly have to create the safest possible campus in America,” Calcado said, noting that the university started to consider the idea of mandating COVID vaccination when vaccines first became available. 

At the time, supply appeared too limited to require it. However, Calcado said officials decided they could require it, given President Joe Biden’s announcement this month that there would be enough vaccines for every American by May and New Jersey’s own progress on vaccinating residents.

“We want to give students back their college experience and we want to give them that back in a very safe way,” he said. 

Currently, there are three COVID-19 vaccines available in the U.S. The single-shot Johnson & Johnson
JNJ,
+1.10%
,
 and Pfizer
PFE,
+1.16%

 and German partner BioNTech SE’s
BNTX,
+0.21%

two-dose vaccine, and a two-dose vaccine from Moderna
MRNA,
-7.37%
.

‘Rutgers is not going to be the only one’

Tony Yang, a professor at George Washington University’s Milken Institute School of Public Health said he expects, “Rutgers is not going to be the only one,” announcing a vaccine requirement adding, “other universities are going to follow suit.” 

But the legal — not to mention cultural — issues surrounding requiring students to be vaccinated aren’t totally settled. 

While colleges legally can and often do mandate students receive vaccines for measles, rubella and other diseases, those vaccines have full Federal Drug Administration approval.

The COVID-19 vaccines available in the United States are authorized under the Federal Drug Administration’s Emergency Use Authorization authority.

That “raises a wrinkle,” as colleges consider their approach to the COVID-19 vaccine, Joanne Rosen, a senior lecturer at the Johns Hopkins Bloomberg School of Public Health wrote in an email. 


COVID-19 vaccines in the U.S. are authorized under the FDA’s Emergency Use Authorization authority.

Under Emergency Use Authorization, the FDA essentially allows use of medical countermeasures, like vaccines, without subjecting them to the full approval process — which can take months or even years — in order to provide access to those tools quickly in a public-health emergency. 

For the past few months, legal scholars have been wrestling with the question of how emergency use authorization plays into whether institutions can require the vaccine. It’s a question that courts are expected to take up soon too. 

“For years, the FDA took the position that an EUA product cannot be mandated, this is not a new position, they’ve held it for years,” said Dorit Rubinstein Reiss, a professor at The University of California Hastings College of the Law.


‘The FDA took the position that an EUA product cannot be mandated. This is not a new position, they’ve held it for years.’


— Dorit Rubinstein Reiss, a professor at The University of California Hastings College of the Law

The pandemic is the first time there’s ever been a possibility that a product authorized under emergency use could be widely required.

A vaccine to counter anthrax was the first vaccine authorized under the emergency use status and the government was legally able to require that members of the armed services get it. But that’s a different situation from students.

One provision of the EUA statute states that people who receive a product authorized under emergency use must be informed of their right to refuse it. And that “suggests that it can’t be mandated,” Reiss said. 

Or does it?

Reiss said she believes they do have the authority to do it. That’s because the statute does not directly address universities or employers, and does not prohibit them from mandating the vaccine.

In addition, the Equal Employment Opportunities Commission issued guidance in December that “strongly implies” vaccines authorized under an EUA can be treated like vaccines approved under the regular process, Reiss wrote in a recent blog post. 

Rights of students vs. employees

Like employees, students would likely have certain rights to decline vaccination for reasons related to disability or religion, but would not have additional rights held by employees.

Those additional rights are created by union contracts or state employment law protections, said Jeffrey J. Nolan, senior counsel at Holland & Knight, who specializes in education and employment law. 

“If a student chooses to come to an institution, they agree to abide by the rules and some of those are pretty intrusive, but they are often necessary,” Nolan said. “It doesn’t mean someone won’t litigate it, but I see less nuance when it comes to the student-side of things than the employment-side of things.”  


‘If a student chooses to come to an institution, they agree to abide by the rules and some of those are pretty intrusive, but they are often necessary.’


— Jeffrey J. Nolan, senior counsel at Holland & Knight

At Rutgers, meanwhile, officials are confident that their policy is “on solid footing” Calcado said. 

“Our office of general counsel has really thoroughly vetted this every which way that it could,” he said. “They are extremely comfortable that we do have the ability to do this.” 

Other colleges aren’t quite as sure.

Michael Uhlenkamp, the senior director of public affairs at the California State University system, said the emergency use status of the COVID-19 vaccines means they can’t require students or employees to get it, though they will be encouraging it.

News last week that the COVID-19 vaccine would be available for everyone in the state above the age of 16 by mid-April was “welcome news for us,” he said.

School officials are also looking into whether campuses can require certain populations of students, like student-athletes or those living in residence halls, to get the COVID-19 vaccine, Uhlenkamp said. 

“It’s not necessarily a clear-cut black-and-white issue, which is why we’re still reviewing,” he said. “We’re going to continue to consult with folks and we’re going to continue to see what’s going on with other institutions.”

The college experience vs. local community

Much of what many households expect from college was curtailed — ranging from house parties to the chance to build in-person relationships with professors. Students and families are understandably eager to find a way to return to some kind of normalcy. 

Of course, colleges are keen to return to pre-pandemic campus life too. Sending students home from campus last spring and allowing them to return in a scaled back form. This reduced the money they typically make from housing and dining.

Other revenue sources, like parking, camps and conferences, also suffered.

Adding insult to injury, that reduced college experience wasn’t enough to prevent COVID-19 outbreaks at colleges across the country. 

Of course, it’s possible that vaccines will have full FDA approval by the time students return to school in the fall, which would get rid of the emergency use-related concerns.

But even if there was legal certainty surrounding requiring an EUA-approved vaccine, there are other issues colleges may be considering when weighing mandating vaccination, Nolan said.

Those include the school population’s views on the vaccine, and whether the college can reach herd immunity without a mandatory vaccine requirement, and the infection rate and/or vaccination rate in the nearby communities.

“It’s a real balance of what’s the right thing,” Nolan added.

A day after the school’s vaccination announcement, Calcado said he was pleased with the reaction from students and families. He cited a column in the student newspaper, The Daily Targum, which called the mandate “the right step to ensure that all members of the community can work and study in a safe environment.”

Still, Calcado said he recognizes not everyone will agree with the policy, which was part of the rationale behind announcing it several months before the fall semester starts.

He didn’t make the announcement to possibly be the first college in the country to do it.

“We wanted to get there early because we wanted to give our students and their families the ability to make the right choices for their circumstances,” he said.



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