Back-to-school preparations are in full swing as schools and colleges prepare for the return of faculty, staff, and students to campus. This year, one question is top of mind for most — can schools and colleges require their staff and students to be vaccinated, and what, if any, restrictions or consequences can they impose on those who don’t comply?

Several recent developments indicate support for these requirements, with conditions.

The CDC Recommends Vaccines and Masks as Part of its COVID-19 Prevention Strategy

While just earlier this month, the CDC had indicated that fully vaccinated individuals could attend school without masks, in response to increased infection rates from the Delta variant, on July 27, the CDC reversed course and recommended “universal indoor masking for all teachers, staff, students, and visitors to K-12 schools, regardless of vaccination status.”

In addition, also on July 27, the CDC issued updated guidance that fully vaccinated individuals should still wear a mask indoors wherever the transmission of COVID-19 is high or substantial. The CDC also advises vaccinated individuals with weakened immune systems or those at increased risk for severe disease to wear a mask, as well as those with household members with weakened immune systems, at increased risk for severe disease, or who are unvaccinated.

Despite this updated mask guidance, the CDC has not changed its opinion that vaccination remains a critical component of preventing the spread and severity of COVID-19.

Emergency Use Authorization Does Not Prevent Vaccine Requirements

The United States Department of Justice (DOJ) issued an opinion letter on July 6 that a COVID-19 Vaccine’s emergency use authorization (EUA) by the Food and Drug Administration (FDA) does not prevent private or public agencies from implementing vaccination requirements. As a reminder, when the FDA issued the EUAs for the current three COVID-19 vaccines (Moderna, Pfizer, Johnson & Johnson), it was conditioned on the delivery of notice to patients of their “option to accept or refuse” the vaccine.

However, the DOJ has now opined that this is simply a notice requirement, and that nothing about the EUA status will prevent the “numerous educational institutions, employers, and other entities across the United States …[from requiring] individuals to be vaccinated against COVID-19 as a condition of employment, enrollment, participation, or some other benefit, service, relationship, or access.”

Indeed, individuals still have the right to refuse to be vaccinated. However, that right may legally be accompanied by a secondary consequence — e.g. an “exclusion from certain desirable activities, such as schools or employment — in the event of refusal.”

Federal Court Rules Employers May Impose Vaccine Mandates

In the first federal decision to date, the United States District Court for the Southern District of Texas dismissed a lawsuit filed by more than 116 hospital workers to prevent their employer from requiring the COVID-19 vaccine as a condition of employment. Houston Methodist Hospital enacted a policy requiring employees to be vaccinated or face termination. The Court rejected the employees’ claims that COVID-19 vaccine mandates are experimental and dangerous, subject workers to being “human guinea pigs,” and constitute unlawful coercion. The Court explained that workers can freely choose to accept or refuse a COVID-19 vaccine; however, if they do, they will “simply need to work somewhere else.” The Court concluded, “Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”

The Equal Employment Opportunity Commission (EEOC) Supports Vaccine Mandates

The EEOC’s updated guidance issued on June 28, reiterates that employers have the legal right to require all employees physically entering the workplace to be vaccinated for COVID-19. This right is subject however to the reasonable accommodation provisions of Title VII and the ADA as discussed below. Employers must ensure that the vaccination requirement does not treat employees differently based on a protected class unless there is a legitimate non-discriminatory reason.

Schools Must Still Comply with the ADA and Section 504’s Disability Protections

In general, schools and colleges must engage in an interactive process with employees and students with disabilities to attempt to find a reasonable accommodation in the event a disability prevents them from obtaining a COVID-19 vaccine. Some examples of reasonable accommodations could include wearing a face mask, remaining at a social distance from others, working a modified shift, getting periodic tests for COVID-19, teleworking or attending classes remotely if feasible, reassignment, temporary leave of absence, etc.

If an employee or student cannot be vaccinated because of a disability, the school may not impose the vaccination requirement as a condition of employment/enrollment unless it can demonstrate that the individual poses a “direct threat” to the health or safety of others. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by a reasonable accommodation. An individualized and detailed analysis is involved in this determination, and schools are advised to involve legal counsel if they wish to exclude an individual with a disability from campus.

The Religious Beliefs of Employees and Students Also Impact Vaccine Mandates

Similarly, if an individual’s sincerely held religious belief, practice, or observance prevents them from getting a COVID-19 vaccine, the school must provide a reasonable accommodation unless it would pose an undue hardship. This analysis is similar to the disability accommodation request, and schools are advised to seek legal counsel before enforcing a vaccine mandate on an individual who has raised a sincerely held religious belief.

Schools and Colleges Must Consider Any Local or State Laws or Requirements

Although the above guidance indicates that vaccine mandates are permissible on a federal level, schools and colleges should consult legal counsel to determine whether any local or state laws or regulations prevent a vaccine mandate. In addition, schools should work with legal counsel to assess the viability of a vaccine mandate under the school’s existing employment or enrollment contracts, faculty or student handbooks, collective bargaining agreements, and any state or local due process requirements for dismissing faculty, staff, or students.

What Type of Incentives Can Schools Offer for Voluntary Vaccination?

First, the federal government is currently providing vaccines at no cost to everyone ages 12 and older.

In general, there are no restrictions on the size or type of an incentive for schools that are requesting documentation or confirmation from employees or students that they were vaccinated in the community (as opposed to through the school or college).

For vaccination programs administered through the employer, the incentives many not be so substantial as to be coercive.

While there are no limitations on schools encouraging vaccination, public schools should consult state and local laws addressing the use of public funds for gifts and incentives.

Other Reminders:

The ADA requires employee and student medical information be kept confidential. While schools can require documentation or confirmation of a vaccine, an individual’s vaccination status must be kept confidential and stored in a separate file.

In order to administer a vaccine, the health care professional must ask medical screening questions to ensure there is no medical reason not to administer the vaccine. The ADA contains restrictions on an employer’s medical inquiries of employees. Employers thus could violate these restrictions by mandating that an employee be vaccinated through the employer’s own program (or through a third-party partner). Instead, employers should permit employees to be vaccinated anywhere of their choosing and should make the vaccination through the employer’s program available solely as a convenience.