Can colleges and universities legally require students to get a COVID-19 vaccine in order to attend classes in person or use campus facilities?
The answer isn’t exactly clear-cut. First and foremost, there is no precedent in the Supreme Court for requiring a vaccine that is under Emergency Use Authorization (EUA). Vaccines, along with other medical products can be conditionally approved under EUA for use during public health emergencies such as the current pandemic. This is the current status of the COVID-19 vaccines that are available.
The EUA provision was added to the Food, Drug and Cosmetic Act of 2004 to give the government increased ability to respond to chemical, biologic, nuclear or radiation threats. The language used in the provision makes it clear that individuals must have a choice with regards to usage of any such product. Specifically, under criteria for issuance of authorization, individuals must be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing the administration of the product, and of the alternatives to the product that are available and of their benefits and risks.”
These vaccines, authorized for use under EUA, have been developed at warp speed and their effects studied for less than one year. According to UC Davis Health, “We do not have long-term safety data of these COVID-19 vaccines since they have only been studied in humans for about 6 months.” Contrast that with the typical amount of time that it takes to develop a vaccine- between 10 and 15 years, according to HistoryofVaccines.org, a website run by The College of Physicians of Philadelphia.
So where is the legal line for requiring a vaccine that has been developed so quickly and studied for such a relatively short amount of time? Well, for one thing, it depends upon which state you are in. The governors of Arizona, Utah, Idaho, Montana, Texas and Florida have already issued executive orders banning so-called “COVID-19 Vaccine Passports.”
“The decision to mandate certain vaccines in order for students to enroll in higher education classes rests with university leadership and is not without potentially significant legal risk,” stated a recent article in UniversityBusiness.com. The reality is that school systems have been sued over mandatory flu vaccination policies in the past and are already contending with a glut of lawsuits regarding tuition reimbursement filed after instruction shifted entirely to online learning last fall.
Although the California State University system recently joined the University of California system in announcing that they will require a COVID-19 vaccine for students to attend in-person classes in the fall, the requirement is contingent upon a vaccine becoming fully approved by the FDA.
On May 7, Pfizer formally announced that it had submitted an application to request the FDA’s full approval for its COVID-19 vaccine for use among people 16 and older. On May 10, EUA approval of the vaccine for children between 12 and 15 was granted. In order to be granted full FDA approval, Pfizer must provide six months of follow-up data showing the safety and efficacy of the vaccine.
Recently, the CSU system stated that it will soon update its current requirements for medical exemptions. According to the press release, “Prior to the implementation of any changes to the CSU's existing immunization requirements, the CSU will engage the California State Student Association, the CSU Academic Senate and labor unions. The COVID-19 vaccination requirement would allow for students or employees to seek an exemption based on medical or religious grounds. The policy and related implementation details are under development and will be made available once the consultations have concluded.”
The next big question is what types of medical exemptions will be included?
Surely pregnant women will not be expected to get the COVID-19 vaccine since Pfizer clearly states on its own website that, "Available data on Pfizer-BioNTech COVID-19 Vaccine administered to pregnant women are insufficient to inform vaccine associated risks on pregnancy.”
Obviously, it would be insane to require the vaccine to any student with a history of anaphylactic shock as their website also states: “Severe allergic reactions, including anaphylaxis, have been reported following the Pfizer-BioNTech COVID-19 Vaccine during mass vaccination outside clinical trials.”
The next disclaimer from its website also bears repeating, “Additional adverse events, some of which may be serious, may become apparent with more widespread use of the Pfizer-BioNTech COVID-19 Vaccine.” Meanwhile, on May 12, Reuters reported that, “The U.S. Centers for Disease Control and Prevention (CDC) said that it had found more cases of potentially life-threatening blood clotting among people who received the Johnson & Johnson (JNJ.N) COVID-19 vaccine and sees a plausible causal association.”
Whatsmore, should students who have already recovered from COVID-19 and have their own antibodies be forced to receive medically unnecessary treatment? While the duration of naturally acquired antibodies is still being explored, preliminary research shows that people recovered from COVID-19 still have enough immune cells to fend off the virus eight months later and virologists have said that this suggests that immunity may last for many years to come.
Reports regarding breakthrough cases of COVID-19 among fully vaccinated continue to come in, with California recently reporting 3,620 breakthrough cases since January 1. Is it morally sound to require a vaccine of a population when the long term effects are still unknown?
These questions remain unanswered because we are still gathering data as most people who are fully vaccinated have only been so for a couple of months here in the U.S. and less than a year abroad.
The Scientific Advisory Group for Emergencies, a U.K. advisory body formed to bring together expertise during public health emergencies, predicts that in the upcoming third wave of COVID-19 in the U.K., 60-70 percent of hospitalizations will be fully vaccinated individuals. Since this is a governmental body filled with highly credentialed experts, why are we not listening? To quote my favorite line from the movie Argo, “Is that the best bad option you’ve got?”
As we move forward in the pandemic it is important that we don’t let optimism and Zoom fatigue blind us to the realities of the choices in front of us. This is still an evolving situation and it is reckless to deny the fact that the vaccines come with some very significant risks of their own. As much as no one wants to get COVID-19, many do not want to take on the associated risks from the vaccines either. It should be an individual’s choice because we are still in the midst of a potentially steep learning curve.