Most of us know that the United States Food and Drug Administration (“FDA”) did not fully approve the use of the COVID-19 vaccines. Such vaccines are only approved for emergency use at this time. Colleges and universities already mandate that students receive certain FDA approved vaccines as a prerequisite to be on campus, such as bacterial meningitis, measles, and hepatitis vaccines. This has evolved most recently to some colleges and universities requiring proof that students received the COVID-19 vaccine. Many ask the question, “Is this legal?”
Typically, it could be deemed a violation of FDA regulations if students were mandated by colleges and universities to receive the COVID-19 vaccine on campus, but the question here is whether colleges and universities may require proof that students received the COVID-19 vaccine before returning to campus. Currently, there are no New York State or Federal guidance explicitly permitting or prohibiting the COVID-19 vaccination mandates in colleges and universities. This poses a problem for the legal community amongst others because there is no simple answer to the above question about whether such a requirement is “legal”.
How do We Address this Issue Without Clear Guidance?
The Equal Employment Opportunity Commission (“EEOC”) issued guidance in December 2020 that may arguably be the “legal support” needed for many colleges who choose to mandate the COVID-19 vaccine. See, EEOC Informal Letter .
Arguably, the EEOC reasons that unvaccinated employees (college students in this instance) pose a “direct threat” to others. Thus, this is considered a public health issue. Additionally, the EEOC advised that employers may mandate vaccines because it is not considered a medical examination, which would be prohibited by the Americans with Disabilities Act (“ADA”). Many argue that the COVID-19 vaccine falls into this category, regardless of whether it is FDA approved.
The Department of Education agrees with the EEOC’s logic and agrees that mandating the COVID-19 vaccine should be no different than mandating other vaccines, regardless of their FDA approval status. Some even argue that because colleges and universities already require students to take COVID-19 tests that are not fully FDA approved under the same emergency authorization, that mandating the COVID-19 vaccine should be no different.
What Happens if Students Refuse to be Vaccinated?
Some colleges and universities are issuing policies where students who refuse to receive the COVID-19 vaccine and have no valid exemption, such as one covered under the ADA or a religious exemption, will likely be required to study remotely with permission if needed. The worst-case scenario would be that such students would need to take a leave of absence.
This article is intended for general information and educational purposes only and should not be considered legal advice or counsel. The substance of this article is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Regina M. Sarkis, Esq.