Legal Updates
COVID-19 Vaccination Issues For Independent Schools
As COVID-19 vaccines have gradually been approved by the Food and Drug Administration (“FDA”) for administration to older children, many school administrators are wondering how the availability of vaccines will affect their plans for the 2021-22 school year.
Decisions regarding whether to require student vaccinations, whether to collect and how to handle documentation of student vaccinations, and what COVID-19 safety protocols should be applicable to vaccinated and non-vaccinated students are just a few of the tough calls facing independent schools today.
Background
On May 10, 2021, the FDA announced that the Pfizer-BioNTech COVID-19 vaccine had been approved for use on an emergency basis for children ages 12 to 15. This approval came on the heels of the FDA’s existing emergency use authorization for persons age 16 and older.
It is generally expected that at some point during the next several months, the Pfizer-BioNTech vaccine may receive emergency approval for administration to children younger than 12, and that the Moderna and Johnson & Johnson COVID-19 vaccines may also be approved for emergency use with individuals younger than 18. In addition, at least some of the currently available COVID-19 vaccines may be approved by the FDA for full non-emergency use with adults before the end of the year.
Legal Environment
As the FDA approves broader and non-emergency uses for the various COVID-19 vaccines, some states will likely amend their laws requiring vaccines for school-age children to include vaccination for COVID-19. Once that happens, schools in such states will be required to monitor and enforce vaccine requirements, subject to potentially applicable medical, religious, and/or philosophical exemptions, in the same manner in which they monitor and enforce existing vaccine requirements. Given the speed with which the COVID-19 vaccines have been developed and implemented, schools may also experience increases in requests for medical and/or other exemptions from vaccine requirements.
At the same time, some states are considering legislation that would actually prohibit schools from making COVID-19 vaccines a requirement for students to attend in-person classes, on the basis that such a requirement would inappropriately infringe on individual liberties. For example, the Michigan state legislature is currently considering various bills that would prohibit or limit vaccine mandates for schools.
Until state laws are amended and/or clarified, independent schools will be confronted with the unenviable decision whether to mandate student COVID-19 vaccination as a matter of school policy, and whether to collect information from students about their vaccination status. To the extent that schools are aware of which students are vaccinated and which are not, schools must also decide what COVID-19 safety protocols, such as mask-wearing, should be applicable to vaccinated and unvaccinated students.
Recommendations For Independent Schools
Before mandating COVID-19 vaccines for students, schools should carefully consider applicable laws, in consultation with legal counsel, including any possible prohibition on vaccine requirements. Schools should also consider state and federal laws pertaining to accommodation of students who ask to be exempted from the vaccine requirement for medical or religious reasons.
If a school decides to collect information regarding students’ vaccination status, the school should take into account any applicable laws concerning student privacy and confidentiality of health and medical information.
Finally, schools should consider what COVID-19 safety protocols should apply to vaccinated and unvaccinated students, and whether different rules might apply to the two groups. For example, consistent with various states’ guidance regarding mask wearing, it may be appropriate to allow vaccinated students to be indoors unmasked, while requiring unvaccinated students to wear masks. In the same vein, requirements regarding quarantining after traveling might apply differently to vaccinated students versus unvaccinated students.
Alternatively, schools might consider maintaining mask requirements for all students, which would provide some degree of confidentiality to unvaccinated students, or they might simply mirror their state’s official guidance regarding masking for vaccinated and unvaccinated persons.
There are also many non-legal considerations that may affect a school’s approach to vaccine requirements. These include, for instance, a school’s culture, its geographic location, community members’ views regarding vaccination mandates, and current COVID-19 transmission rates.
In light of all of these factors, schools will need to carefully craft their policies and communications regarding COVID-19 vaccinations, while the legal and scientific landscapes continue to evolve.
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The education attorneys at Schwartz Hannum PC are continuing to monitor student COVID-19 vaccination issues closely. If you have questions about any of these issues, we would be happy to assist.
