As institutions of higher education (“IHEs”) approach their summer and fall terms, the question on every administrator’s mind is: Can our institution legally implement a mandatory COVID-19 vaccine policy for students and/or employees? Like all pandemic-related questions, the guidance for best practices as it relates to mandatory vaccines continues to evolve, though newly released guidance from the EEOC offers some clarity regarding employees. Still, with various bodies from both the state and federal levels weighing in on these questions, there are significant unresolved questions.
Health officials have been clear that mandatory vaccinations are critical to mitigating the spread of COVID-19. The CDC has advised that everyone 12 years of age and older should get a COVID-19 vaccine as soon as possible.
Student Vaccine Mandates
With specific regard to the higher ed arena, the American College Health Association (“ACHA”), released the following statement regarding vaccine requirements on April 29, 2021:
Where state law and available resources allow, ACHA recommends COVID-19 vaccination requirements for all on-campus college and university students for fall semester 2021, in accordance with the IHE’s normal exemption practices, including exemptions for medical contraindications. This recommendation applies to all students who live on campus and/or participate in on-campus classes, studies, research, or activities.
Moreover, ACHA recommended that while “opinions differ, many legal experts have stated that EUA status does not preclude an institutional vaccination requirement.”
The legal risk to requiring students to be vaccinated for COVID-19 appears minimal. Students can freely choose whether or not to attend an institution, if they hold strong opinions regarding specific health requirements. IHEs have broadly required students to have completed other vaccinations as a requirement for enrollment, and a COVID-19 mandate would appear to be consistent with these requirements. Institutions should provide legal exemptions for COVID-19 vaccines in the same way that they do for all other vaccinations.
Employee Vaccine Mandates
Mandatory employee vaccines, however, present more complex legal issues. Both the CDC and EEOC have released guidance expressly and impliedly permitting the implementation of mandatory vaccine policies by private IHEs and employers, so long as such policies are permissible under state law. In an effort to provide some clarity, the EEOC released updated guidance regarding employment vaccination requirements on May 28, 2021, advising that mandatory vaccination requirements by employers do not violate federal EEO laws as long as employers provide reasonable accommodations to employees for religious, medical or pregnancy-related issues. Importantly, however, the updated guidance specifically notes that “[t]he EEOC has received many inquiries from employers and employees about the type of authorization granted by the U.S. Department of Health and Human Services (HHS) Food and Drug Administration (FDA) for the administration of three COVID-19 vaccines. These three vaccines were granted Emergency Use Authorizations (EUA) by the FDA. It is beyond the EEOC’s jurisdiction to discuss the legal implications of EUA or the FDA approach.”
This is an important caveat, as the FDA statute related to the EUA (21 U.S.C. § 360bbb–3) provides that persons must be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.” If an employer requires employees to be vaccinated and then discharges employees who refuse to be vaccinated (absent a valid medical or religious exemption request), there is some risk of wrongful discharge and other potential employment claims. This legal risk, however, should resolve if and when the vaccinations receive approval through the FDA’s regular approval process. Notably, the U.S. District Court for the Southern District of Texas ruled in June that the EUA statute “neither expands nor restricts the responsibilities of private employers; in fact, it does not apply at all to private employers.” Bridges v. Houston Methodist Hospital, Case No.: 4:21-cv-01774. Consequently, the Bridges Court dismissed the plaintiff-employees’ complaint against their hospital-employer for its mandatory vaccination policy, stating that such a policy was not coercive because employees were free to accept or refuse a COVID-19 vaccine; however, if they refused, they would simply need to work somewhere else. In addition, employers can mitigate this risk by procuring employment practices liability insurance to cover both the costs of defending any wrongful discharge claim and the cost of any adverse judgment in a wrongful discharge case.
Beyond such federal guidance, there are several states that are considering or have already adopted legislation that is intended to prevent or limit mandatory vaccine policies. For instance, Utah enacted Utah House Bill 233 in March of this year, which prohibits the Utah Board of Higher Education and institutions within the system from requiring a student to show proof of vaccination. The law also prohibits schools from requiring a vaccine-exempt student to participate in remote-only learning.
Other Considerations: Exemptions & Privacy
If your institution does implement a mandatory vaccine policy for students and/or employees, you should be careful to consider other legal requirements that might affect your policy, such as those governing medical and religious exemptions, as well as the privacy and security of certain medical documentation. As noted above, the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act, require employers to provide employees with reasonable accommodations for medical and religious reasons, unless it would pose an undue hardship or pose a direct threat to the worksite. Moreover, information elicited in pre-vaccination medical screening questions are likely to elicit information about a disability. Such “disability-related” inquiries, as it relates to employees, might constitute a “confidential medical record” under the ADA, which must be kept confidential. Information related to an employee’s vaccination status must also be treated as confidential medical information. Finally, to the extent the information pertains to students and is considered an “education record” or a “treatment record” under the Family Educational Rights and Privacy Act (“FERPA”), it is also required to be kept confidential.
If you have questions about your institution’s COVID-19 vaccine policy, please contact the Steptoe & Johnson Higher Education Team.
 In the last month, both Pfizer and Moderna have applied for full FDA approval of their vaccines. The approval process is expected to take months. https://www.nytimes.com/live/2021/06/01/world/covid-vaccine-coronavirus-mask#moderna-vaccine-fda-approval (last viewed June 2, 2021).