As institutions of higher education (“IHEs”) across the State of Ohio 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. Indeed, the EEOC has recently released updated guidance regarding mandatory employee vaccines, and there is pending Ohio state legislation which would prohibit mandatory vaccines. This article explores the current legal landscape of mandatory vaccinations for students and employees, with the express caveat that institutions need to follow changes in the law on this topic.
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.[1] 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.[2]
Moreover, ACHA recommended that while “opinions differ, many legal experts have stated that EUA status does not preclude an institutional vaccination requirement.” Additionally, 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.[3]
The legal risk to requiring students to be vaccinated for COVID-19 is minimal, as students can choose whether or not to attend an institution, but meet valid requirements established by institutions. IHEs have universally required students to have completed other vaccinations as a requirement for enrollment, and COVID-19 is no different. Institutions should provide legal exemptions for the COVID-19 vaccines in the same way that it does for all other types of vaccinations.
Mandatory employee vaccines, however, present more complex legal issues about which we continue to gain clarity. In fact, the EEOC released updated guidance regarding employment vaccination requirements on May 28, 2021[4], 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, 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.”[5]
This is an important caveat, as the FDA statute related to the Emergency Use Authorization (“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 or tort litigation claims. This legal risk, however, should resolve if and when the vaccinations receive approval through the FDA’s regular approval process.
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Ohio College & University Vaccine Policies
Many Ohio IHEs have already determined their COVID-19 vaccine policies for the fall semester. Based upon an informal survey conducted by Steptoe & Johnson PLLC of eleven private Ohio IHEs, we found that over 50% of the respondents strongly encouraged students and employees to get vaccinated but did not require vaccination nor notification of vaccination status.[6] One institution required vaccination for all students; one institution required vaccination for residential students; two institutions required vaccination for specialty-program-students only, such as nursing students; and one institution required notice of vaccination status.
Notably, at least two of the institutions that do not require vaccination nor notification of vaccination, found through their own anonymous surveys that anywhere from 75% to 95% of students and employees were already vaccinated, or planned to be vaccinated by the end of the summer.
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Ohio Legislation
There are several states, including Ohio, that are considering proposed 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.[7] The law also prohibits schools from requiring a vaccine-exempt student to participate in remote-only learning.
In Ohio, there are two bills currently pending in the Ohio House of Representatives, and one in the Senate, that are intended to prevent or limit COVID-19 vaccine requirements or mandates.
First, Senate Bill 169 states that a person, political subdivision, public official, or state agency shall not mandate either directly or indirectly the administration of a vaccine used for the purpose of “inducing in humans immunity against a coronavirus.” It also states that an individual shall not be required to show proof of vaccination. This Bill as currently written, if passed, would likely stand to bar IHEs and employers from implementing mandatory vaccination policies.[8]
Second, House Bill 253 states that no individual can be required to show proof of a COVID-19 vaccination in order to enter the state or a building or facility that is controlled, operated or owned by a state agency. Similarly, the bill would prohibit political subdivisions and state agencies from adopting; enacting; or issuing any order, ordinance, resolution, or rule that would require an individual to show proof of vaccination against COVID-19.[9]
Third, House Bill 248, the Vaccine Choice and Anti-Discrimination Act, would permit an individual to decline a required vaccination, whether verbally or in writing, based on medical contraindications, natural immunity, or reasons of conscience (including religious convictions). The bill would further require that persons, political subdivisions, public officials, or state agencies mandating vaccination notify individuals of the available exemptions.[10]
All three bills were referred to the Ohio House & Senate Health Committees in April 2021, respectively. HB 253 had its first hearing before the House Health Committee on May 18, and HB 248 had its first hearing May 18 and a second May 25. The Senate Bill’s hearings began on May 26. While the Senate Bill would prohibit mandatory vaccination policies, the two House Bills would not prohibit mandatory vaccination policies by private IHEs and employers, but would rather establish available exemptions to a vaccine policy and require such entities to notify individuals of those exemptions.
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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” inquires, 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.
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Questions
If you have questions about your institution’s COVID-19 vaccine policy, please contact the authors, Josh Stearns, Nelva Smith, or Bill Lane.
[1] CDC, Safety of COVID-19 Vaccines (Updated May 25, 2021) https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/safety-of-vacc….
[2] ACHA, American College Health Association Recommends COVID-19 Vaccination Requirements for All On-Campus College Students in Fall 2021 (April 29, 2021), https://www.acha.org/ACHA/About/ACHA_News/ACHA_Recommends_COVID-19_Vacci….
[3] CDC, Workplace Vaccination Program (Updated Mar. 25, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essen… see also EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Updated Dec. 16, 2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-re….
[4] EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Updated May 28, 2021) https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-re….
[5] Id.
[6] See also Jake Zuckerman, Most Ohio colleges say no to COVID-19 vaccine mandates for students, employees, News 5 Cleveland (April 28, 2021), https://www.news5cleveland.com/news/state/most-ohio-colleges-say-no-to-c….
[7] Education Immunization Modifications, H.B. 233, https://le.utah.gov/~2021/bills/static/HB0233.html.
[8] Senate Bill 169, 134th General Assembly, https://www.ohiohouse.gov/legislation/134/sb169.
[9] House Bill 253, 134th General Assembly, https://ohiohouse.gov/legislation/134/hb253.
[10] Vaccine Choice and Anti-Discrimination Act, House Bill 248, 134th General Assembly, https://ohiohouse.gov/legislation/134/hb248.
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