Since COVID-19 vaccinations first became available at the beginning of 2021, colleges and universities have been struggling with whether to require COVID-19 vaccinations for students, facility, and staff. Although colleges and universities have routinely required certain vaccinations in the past, some legal commentators have argued that the fact that COVID-19 vaccines are subject to Emergency Use Authorization (“EUA”) by U.S. Food and Drug Administration (“FDA”) rather than approved through a full FDA process prevented colleges and universities from mandating that students, faculty, or staff receive them before returning to campus as they do other vaccines. Legal uncertainty on the issue has led some colleges and universities, as well as other schools and employers, to hold off on issuing COVID-19 vaccine mandates.
Recent legal developments, however, provide clarity on the legal viability of campus vaccine mandates. At each turn, courts and governmental agencies have struck down challenges to COVID-19 vaccination mandates, paving the way for colleges and universities to require that its students and employees be vaccinated against COVID-19 before returning to campus.
The most significant development occurred on July 18, 202, when a federal judge in the Northern District of Indiana refused to block Indiana University from implementing its vaccine mandate for students returning to campus in the fall. In Klaassen v. Trustees of Indiana University, Judge Leichty denied student plaintiffs’ request for a preliminary injunction, finding their 14th Amendment claims were unlikely to succeed on the merits. As part of his 101-page opinion, Judge Leichty ruled that Indiana University had a rational basis for requiring vaccines, noting, “This wasn’t (and still isn’t) a decision taken lightly. It wasn’t a decision reached overnight. It wasn’t a decision taken by some fly-by night committee undetached from the current science . . . .” The court specifically called out how the University utilized a committee consisting of “seven MDs, some with additional degrees in public health or other PhDs, and others with graduate degrees in public health, risk mitigation, law, and ethics.”
Further, the court was unpersuaded that the COVID-19 vaccine’s Emergency Use Authorization (“EUA”) status made the University’s mandate any different than previous vaccine mandate, which had been uniformly upheld. In the case of COVID-19 in particular, the court stated:
Not all EUAs are created equally. Because of the widespread use of a COVID-19 vaccine, the FDA informed manufacturers that it expected the same level of endpoint efficacy data as required for full approval, enough safety data to justify by clear and compelling evidence the vaccine’s safety, and confirmation of the technical procedures and verification steps necessary to support full approval.
After determining the basis of the policy was rationally related to ensuring the public health of students, faculty, and staff, the court upheld Indiana University’s mandatory vaccine policy. On August 2, 2021The Seventh Circuit Court of Appeals unanimously affirmed the court’s decision.
The Klaassen decision on student vaccine mandates comes on the heels of another decision upholding mandatory COVID-19 vaccinations in the employment context. In Bridges v. Houston Methodist Hospital, a group of employees challenged Houston Methodist Hospital’s policy of requiring its employees to be vaccinated against COVID-19 as a condition of their continued employment. The employees, who refused to get the vaccine, claimed, among other things, wrongful termination. The court, in a quick 5-page order, dismissed the case. First, the court dismissed arguments of wrongful termination under Texas law because the employees were not refusing to commit an illegal act, which was necessary to assert a claim under Texas law. The court also found the mandate did not violate public policy, citing the EEOC’s guidance on COVID-19 vaccine mandates as well as existing Supreme Court precedent on vaccine mandates. The court further determined the statutory language concerning EUAs that requires that emergency product recipients understand “the option to accept or refuse administration of the product” did not impose a restriction on private employers.
In addition to these cases, a recently released Department of Justice (“DOJ”) memo provides further support for the legality of COVID-19 vaccination mandates by colleges and universities. In an analysis similar to that of the courts, the DOJ memo stated that the EUA status of the COVID-19 vaccine does not prohibit entities from requiring it. The 18-page memo, dated July 6, but not released publically until recently, concludes the EUA statute “concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.”
The combination of these two cases and the DOJ memo provides colleges and universities with solid legal ground to implement COVID-19 vaccine mandates for their students and, subject to collective bargaining obligations, their employees. Legal arguments challenging COVID-19 vaccinations have now been summarily shot down by the courts. Absent any prohibitions on the state or local level, there is currently no legal support for challenging the mandatory COVID-19 vaccination policies.
Nevertheless, these policies still come with risks. Vaccine requirements may cause some employees to leave their employment. For example, at Houston Methodist, more than 150 employees refused the vaccine and resigned their post or were fired in the face of the vaccine mandate. And, while there are no widely available statistics on the impact a vaccine mandate will have on the student side, there is potential that such policies could cause a drop in enrollment. According to the Mayo Clinic, only 53.8% of Americans aged 18-24 currently have at least one dose of the vaccine. In a recent survey by Inside Higher Ed, 40% of those who were consciously refusing the vaccine stated they would probably or definitely leave their institution rather than receive the vaccination. While it remains to be seen if that sentiment will have real world consequences, colleges and universities can likely expect some attrition in response to a vaccine mandate. Therefore, while colleges and universities can require vaccinations, whether or not they should is a question each school will need to determine on a case by case basis.