No safe reopening plan would be complete without consideration of whether to require student vaccinations.
As states have opened COVID-19 vaccinations to all individuals 16 and older (and are expanding to age 12 and older, based on the CDC advisory committee’s recent recommendation), institutions of higher education, like many other employers, are considering whether to encourage or possibly mandate their employees to receive a vaccination. Unlike other organizations, institutions of higher education have the added quandary of whether to encourage or mandate COVID-19 vaccinations for students in an effort to return to full in-person instruction. On March 25, 2021, Rutgers University became the first major institution of higher education to publicly announce that all students planning on attending the fall 2021 semester must be fully vaccinated. Since then, at least 80 colleges and universities have followed suit. Others have taken a “wait and see” posture, and some have chosen to encourage, but not require, the vaccine for students and employees. We summarize the issues and challenges regarding vaccination policies for employees and students below.
Policies Affecting Employees
As detailed in our prior Alert, the Equal Employment Opportunity Commission (EEOC) has strongly inferred an employer may implement a mandatory COVID-19 vaccination policy, so long as exemptions are permitted for certain medical and religious reasons.
The EEOC has stated that asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry under the Americans with Disabilities Act (ADA). However, pre-vaccination medical screening questions are “disability-related” under the ADA if asked by the employer or a contractor on the employer’s behalf. Such screening questions may also solicit genetic information, raising potential concerns under the Genetic Information Nondiscrimination Act. For this reason, many employers who are considering adopting mandatory COVID-19 vaccination policies are choosing to rely on employees providing proof of vaccination by third-party pharmacy providers, rather than employers administering a vaccine directly or through a contracted relationship, to avoid improperly obtaining any medical, genetic or other personal information.
If an employee indicates he or she is unable to receive a COVID-19 vaccination because of a disability and the employer wishes to exclude the employee from physically entering the workplace, the employer must conduct an individualized assessment to determine whether the unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Thus, upon receipt of an employee’s accommodation request, a college or university should be prepared, as part of its mandatory vaccination program, to conduct the interactive process to identify whether a direct threat would exist in having an unvaccinated employee in the workplace, taking into account: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. If the college or university determines, after this individualized assessment, that there is a direct threat that cannot be reduced to an acceptable level, the college or university may exclude the employee from physically entering the workplace, at which point, the college or university would have an obligation to consider other accommodations, such as remote work or a leave of absence. The college or university may not automatically terminate an employee in these situations and should consider the availability of alternate teaching modalities in weighing potential accommodations.
The EEOC also confirmed that an employee may seek an exemption on the basis of a sincerely held religious belief, practice or observance that prevents the employee from receiving a vaccine. In identifying an employee’s right to request an exemption on this basis, the EEOC noted that the definition of religion is broad and that the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. However, the EEOC also made reference to the easier standard for employers to establish that an exemption would constitute an “undue hardship,” as courts have defined this term under Title VII as having more than a de minimis cost or burden on the employer. Thus, while colleges and universities will need to consider accommodation requests on the basis of an employee’s sincerely held religious belief, practice or observance, in general, as with other requests for religious accommodations, colleges and universities may be able to establish undue hardship more easily than in the disability context (although this is not necessarily true under some more protective state nondiscrimination laws, such as in New York). Importantly, however, institutions must be prepared to engage in an individualized accommodation analysis, which ultimately focuses on the level of risk an employee who is not vaccinated creates and to what degree that risk can be minimized.
Institutions of higher education must also consider state and local law when implementing mandatory vaccination policies. For example, New Jersey has issued specific guidance confirming that women who are pregnant or breastfeeding and have been advised by a doctor not to get a vaccine cannot be required to receive a vaccine. Other states such as New York and California, and cities such as Chicago and Philadelphia, have passed laws requiring employees to be provided paid leave for time missed from work related to receiving a COVID-19 vaccine. Employers with unionized employees will also need to weigh carefully the strength of the management rights clause in their collective bargaining agreements to retain the exclusive right to unilaterally implement reasonable work and safety rules and any past practice of unilaterally implementing a policy or practice change against the advantages/disadvantages of bargaining with the union on the issue of mandating the vaccine. In addition, employees who protest a mandatory vaccination requirement in a concerted manner may also be entitled to some protection from adverse action under the National Labor Relations Act (NLRA).
More recently, public sector employees have filed lawsuits challenging the ability of their employers to mandate the COVID-19 vaccination due to the fact that the current vaccines have been released and distributed under emergency use authorizations (EUA) under the federal Food, Drug and Cosmetic Act (FDCA). The argument promoted in one of these lawsuits, Legarreta v. Macias, 2:2021cv00179 (D.N.M. Feb. 28, 2021), is that the “state” employer action in requiring the vaccine is preempted by federal law relative to EUA; that is, the FDCA provides that a vaccine cannot be mandated. In refuting these claims, there is a potential argument that this theory is applicable only with respect to public sector employers and, regardless, is a misreading of the FDCA, which provides only that those who administer the vaccine must be clear that receipt of the vaccine is voluntary, but does not state that there cannot be consequences for declining a vaccine and, moreover, the FDCA does not regulate the employment relationship.
Notably, the EEOC guidance discussing the manner in which employers may implement mandatory vaccination programs takes into account their current EUA status and does not distinguish between vaccines issued under an EUA or FDA licensure.
Policies Affecting Students
No safe reopening plan would be complete without consideration of whether to require student vaccinations. At this writing, the U.S. Department of Education has not provided guidance to institutions of higher education regarding this issue. However, universities have long been able to require students to become vaccinated as a condition of attending school. See Jacobsen v. Massachusetts, 197 U.S. 11 (1905). And, as vaccines become more widely available, an increasing number of institutions are requiring students to do so. As a reminder, the Higher Education Act requires institutions to publish their vaccine policies and make them available to current and prospective students as part of mandatory consumer disclosures.
Even so, institutions should consider how this issue fits into their safe reopening plans before making student vaccinations mandatory. For example, in some states, public institutions may face increased scrutiny or be required to make accommodations for religious objections that may have to be accommodated under their state’s version of the Religious Freedom Restoration Act. Additionally, recent decisions by the Supreme Court of the United States indicate a new willingness by the Court to reject traditional deference to public health considerations when it comes to the First Amendment exercise of freedom of religion. See e.g., Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ___ (2020). While no court has yet applied this in the context of a student objecting to a mandatory vaccine at the postsecondary level, public institutions should balance allowing such limited exceptions against the public health threat posed to the campus community.
Similarly, colleges should consider exceptions to their vaccination policies based on an individual’s disability. Virtually all institutions—public and private—are subject to the ADA and/or Section 504 of the Rehabilitation Act. These laws require that reasonable accommodations be provided to students with disabilities. As with employees, institutions should consider reasonable accommodations for students whose disability prevents them from receiving the vaccine, keeping in mind that what constitutes a reasonable accommodation for an employee may be very different than for a student.
Finally, while all indications are that colleges and universities may legally require vaccination of students, more clarity from the states and the federal government, as well as from the courts, would be helpful in evaluating the legal risks facing institutions. And, of course, institutions have many nonlegal considerations to keep in mind. For example, is mandatory vaccination of students consistent with an institution’s values, including inclusivity and equity? Will the emergency use authorization for all the current vaccines cause more students to object? How many students are likely to forgo returning to college rather than take the vaccine? Are less restrictive means of encouraging vaccination available, such as limiting access to on-campus housing or group activities for those who are not vaccinated? Is the campus planning to return to full in-person capacity, increasing the risk of the virus transmitting through a population with unvaccinated individuals, or will it return to a hybrid model with lesser density, allowing for additional safeguards like distancing and masking? Does the institution have resources for frequent testing or making vaccines available to those who may not have access and could be impacted detrimentally by a mandatory vaccine policy (with vaccine supply on the rise, lack of access to vaccines appears less urgent but may be an issue within some communities or for some individuals)? Ultimately, each institution will need to assess its own risk profile, community health and other goals, and local and state policies in deciding how mandatory vaccination policies fit within their safe reopening plan and campus community before taking any decision.
In deciding on a COVID-19 vaccine policy for both employers and students, institutions of higher education should continue to monitor and consider vaccine availability, as it does not make sense to require vaccinations until they are widely available. Additionally, institutions that decide to implement a mandatory policy should train employees responsible for administering it to ensure all legal requirements―such as providing required accommodations―are followed. Finally, institutions should continue to monitor changes to federal, state and local law, regulations, health and safety orders and guidance that will continue to impact college and university decisions on returning to in-person operations.
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Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
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