As private K-12 schools plan for the 2021-2022 school year, many are asking the pressing question of whether they can (or should) require students to be fully vaccinated as a condition of returning to campus in the fall. Given the current lack of federal or state guidance on this issue, each private K-12 school should assess its goals in this area, weigh the risks and benefits of a vaccine requirement, and make an individualized decision in light of its goals and the results of its risk assessment. What follows are some key points and considerations for private K-12 schools regarding this issue.
Access To And Availability Of COVID-19 Vaccines For Students
One factor private K-12 schools should consider when determining whether to require the COVID-19 vaccine for students is the ability of its students to access the vaccine. A COVID-19 vaccine requirement may not be practical or easily enforceable unless a school’s students are eligible for the COVID-19 vaccine and that vaccine is readily available for students.
Since December 2020, the Pfizer-BioNTech COVID-19 vaccine has been authorized by the Food and Drug Administration (FDA) for emergency use authorization in individuals ages 16 and older. On Monday, May 10, 2021, the FDA authorized the Pfizer-BioNTech COVID-19 vaccine for emergency use authorization in adolescents 12 through 15 years of age. The Director of the Centers for Disease Control and Prevention (CDC) thereafter recommended that 12- through 15-year-old adolescents begin being vaccinated “right away,” and California opened Pfizer-BioNTech COVID-19 vaccine appointments to the 12 to 15 age group. The American Academy of Pediatrics is also recommending that all adolescents ages 12 and older get vaccinated against COVID-19.
Of the three COVID-19 vaccines that have been granted emergency use authorization, only the Pfizer-BioNTech vaccine is approved for those under the age of 18, and there is currently no vaccine approved for persons under the age of 12.
Accordingly, when considering whether to impose a COVID-19 vaccine requirement on students in the fall, schools will want to consider what age groups among its students are eligible and the availability of the vaccine approved for that age group in its area.
Lack Of Federal Or State Requirement
There is a long history of case law dating back to 1890 addressing the authority of a state actor, such as a state, county, city, or public entity, to impose laws, regulations, ordinances, and other mandates requiring students to receive certain vaccinations as a condition of school attendance. Given that private K-12 schools are not state actors, they do not have this authority. Currently, California law requires that students receive certain vaccinations as a condition, of admission to a public or private K-12 school, unless the student has a valid medical exemption from immunizations issued by the California Department of Public Health (CDPH) through the new California Immunization Registry Medical Exemption website. At this time, California law does not require that students receive the COVID-19 vaccine as a condition of admission to a K-12 school. With regard to whether students will be required to get vaccinated for COVID-19 before returning to school in the fall, the state has said the following:
“While vaccination isn’t currently required to return to in-person learning, the state’s objective is to get as many of our 2.1 million 12 to 15-year-olds vaccinated prior to the new fall term. By getting our young people vaccinated soon, we can take comfort in knowing those over age 12 are protected against highly contagious coronavirus variants and COVID-19, both inside and outside of the classroom.”
The CDPH has also strongly recommended that, in the K-12 school context, all persons eligible to receive COVID-19 vaccines receive them at the first opportunity. Nevertheless, at this time, there is no federal or state law, regulation, mandate, or guideline requiring K-12 students to receive the COVID-19 vaccine in order to attend school that a private K-12 school could rely upon to support a COVID-19 vaccine requirement for its students. As we approach the fall 2021-2022 school year, however, it is possible that guidance in this area may arise.
Principles Of Contract Law Govern Relationship Between Private Schools And Students
The relationship between private K-12 schools and its students and their parents is largely determined by the principles of contract law.[1] The sources of the contractual relationship between a private school and its students and their parents usually include enrollment agreements; student/parent handbooks, policies, and procedures; school brochures, publications, bulletins, and/or other press materials; and oral promises.
Private K-12 schools may be able to impose and enforce a COVID-19 vaccine requirement through a provision in an enrollment agreement that requires students to be vaccinated as a condition of being present on campus. Similarly, if a private K-12 school has a broad provision in its enrollment agreement that requires students to comply with the school’s COVID-19 policies and protocols, as they may be amended from time to time, it may amend its COVID-19 policies and protocols to include a COVID-19 vaccine requirement for students. Private K-12 schools should consult with legal counsel to determine whether their enrollment agreements contain a provision that could be properly interpreted as a contractual obligation for their students to receive the COVID-19 vaccine for the 2021-2022 school year.
Private K-12 schools that do not have such a provision risk a potential breach of contact claim by imposing a COVID-19 vaccine requirement. In this case, parents may assert that the school is imposing a new term or obligation for their student to attend school that was not agreed upon by the parties at the time the enrollment agreement was signed and executed by the parties.
Emergency Use Authorization
The Pfizer-BioNTech COVID-19 vaccine, which is the only vaccine approved for individuals ages 12 and above, albeit through emergency use authorization, has filed an application for full approval with the FDA; however, that application is currently pending. In the meantime, the Pfizer-BioNTech COVID-19 vaccine remains authorized for emergency use authorization only. At this time, it is unclear whether the fact that a vaccine is approved under emergency use authorization would impact a school’s ability to require students to be fully vaccinated as a condition of attending classes on campus. A currently pending lawsuit addressing COVID-19 vaccine mandates in the employment context that may turn on the emergency use authorization status of the currently available vaccines may be informative for private K-12 schools, depending upon the outcome.
The University of California (UC System) and California State University (CSU System) systems recently announced their intention to require all students accessing university facilities and programs to receive the COVID-19 vaccine, subject to religious exceptions and medical exemptions, once the FDA has fully approved at least one COVID-19 vaccine and the fully approved vaccine is widely available. Accordingly, the COVID-19 vaccination requirement will not take effect until the FDA has fully approved at least one vaccine and the fully approved vaccine is widely available. As a result, the UC System and the CSU System will not require students to receive a COVID-19 vaccine authorized under emergency use authorization. Interestingly, the CSU System had previously indicated that it would not require all students to be fully vaccinated against COVID-19 as a condition of enrollment upon advice from CSU’s general counsel that it could not do so because the current COVID-19 vaccines are authorized under emergency use authorization.
Given the uncertainty surrounding the emergency use authorization issue, private K-12 schools may want to consider postponing the implementation of a COVID-19 vaccination requirement until a COVID-19 vaccine has received general approval from the FDA for use in students and that vaccine is widely available.
Private K-12 schools that wish to impose a COVID-19 mandate before a vaccine has received general approval from the FDA may want to prepare for the possibility that parents may refuse to have their student be vaccinated using a vaccine approved through emergency use authorization. Parents may have more concerns about their student taking a vaccine that has been approved through emergency use authorization as opposed to one that has received full FDA approval. Schools should consider discussing alternative options with parents who decline to have their student receive a vaccine approved through emergency use authorization. Alternatives may include the student’s participation in regular COVID-19 testing as a condition of attending classes, enhanced personal protective equipment, and, if the school is offering distance learning during the 2021-2022 school year, remote learning options. Private K-12 schools may also want to provide parents who express concerns about the COVID-19 vaccine with information on the safety and efficacy of the vaccine from reputable sources, such as the CDC.
Not Determinative That Private Colleges And Universities Are Requiring The COVID-19 Vaccine
Recently, the American College Health Association (ACHA) announced its recommendation that colleges and universities require the COVID-19 vaccination for all on-campus students where state law and available resources allow and subject to the college and universities’ typical vaccination exemption policies. According to a list maintained by the Chronicles of Higher Education, a number of public and private colleges and universities throughout the country — such as Rutgers, Cornell, Duke, Brown, Notre Dame, Yale, Princeton, Northeastern University, the UC System, and the CSU System — have announced their intention to require students to be fully vaccinated against COVID-19. LCW recently published an article titled, the Permissibility Of COVID-19 Vaccine Requirements For Students At Private Colleges And Universities, regarding COVID-19 mandates at private colleges and universities.
Nevertheless, there are distinct differences between private colleges and universities and private K-12 schools that may affect the COVID-19 vaccine mandate analysis. K-12 education is compulsory, while higher education is optional. Accordingly, private colleges and universities may be more closely analogous to private businesses, which can set their own policies for admittance, than are private K-12 schools. Further, students attending private colleges and universities are typically adults, which make the concept of consent easier and more straightforward. In addition, in the private college and university context, a significant amount of students are likely living in close quarters in dormitories or other student housing on or near campus, which creates a particularly compelling reason to require students at private colleges and universities to be fully vaccinated. This compelling reason would, nevertheless, likely apply to private K-12 boarding schools.
Disability Accommodations, Medical Exemptions, and Religious Accommodations for Students
Private K-12 schools that choose to require the COVID-19 vaccine for students should provide disability accommodations consistent with Title III of the Americans with Disabilities Act (ADA) requirements. Title III of the ADA applies to places of public accommodation and prohibits discrimination against certain individuals, such as current students and student applicants based on disability with regard to the full and equal enjoyment of the goods, services, facilities, or accommodations. Generally, places of public accommodation must make reasonable modifications unless doing so would pose a direct threat to the health and safety of others. Notably, the Equal Employment Opportunity Commission (EEOC), which enforces the ADA in the employment context, has concluded that COVID-19 presents a significant risk of substantial harm to the health and safety of the workplace and that COVID-19 satisfies the direct threat standard under the ADA.[i] While the EEOC does not enforce Title III of the ADA, the same rationale may apply with regard to students in the private K-12 school context.
Further, it is advisable to provide medical exemptions to students who have a medical condition or contraindication that prevents them from receiving the COVID-19 vaccine, with documentation from a medical provider. The documentation should only ask the medical provider to validate the existence of a medical condition or contraindication that prevents the student from receiving the COVID-19 vaccine: it should not ask for the name or type of the medical condition or contraindication nor any other specific medical information to avoid implicating the student’s privacy rights or applicable state or federal laws prohibiting such medical inquiries.
Finally, private K-12 schools that require the COVID-19 vaccine for students may want to provide accommodations for those students who decline the COVID-19 vaccine based on their religious beliefs. While there is no federal law that requires a private K-12 school to provide religious accommodations to their students, at the state level, California’s Unruh Civil Rights Act (Unruh)[ii] outlaws discrimination in places of public accommodation based on religion, among other protected classifications. Notably, the Unruh Act does not apply to religious schools with regard to their admissions decisions.
There is no case law addressing whether Unruh requires a place of public accommodation to provide members of the public with religious accommodations with regard to general policies that apply neutrally to all people. Nevertheless, if a student requests an accommodation to a COVID-19 vaccine requirement for religious reasons and a private K-12 school declines to provide one or if a student is prohibited from participating in programming or activities provided by a private K-12 school due to being unvaccinated for religious reasons, it is possible that the student may bring a claim under Unruh for religious discrimination.
There are other reasons why private K-12 schools may want to provide religious accommodations for students as well, including to act consistently with their mission and purpose and to act with respect and demonstrate value of students’ religious beliefs. Further, private K-12 schools that elect not to provide religious accommodations may risk negative public perception and public relations issues related to that choice.
Possible accommodations for students unable to receive the COVID-19 vaccine due to disability, medical exemption, or religious belief should be considered on a case-by-case basis, but may include required participation in regular COVID-19 surveillance testing, enhanced personal protective equipment, or, if the school is offering distance learning during the 2021-2022 school year, remote learning options.
Potential Risks and Consequences of Requiring the COVID-19 Vaccine
Private K-12 schools should be aware that mandating the COVID-19 vaccine for students as a condition of entering the campus may lead to litigation against the school from students, parents, or others who oppose the requirement for any number of reasons, including religious reasons, anti-vaccination beliefs, or other personal reasons. Defending against a lawsuit can be time-consuming and costly regardless of whether it is meritorious.
Moreover, mandating the COVID-19 vaccine for students carries the risk of negative public perception or public relations issues. Some individuals or groups may have negative feelings about the COVID-19 vaccine specifically or medical procedures or the healthcare system in general, and may be vocal about their opposition to a COVID-19 mandate. Other individuals or groups may be opposed to the COVID-19 vaccine for political, religious, or personal reasons. Imposing a COVID-19 vaccine requirement could negatively impact enrollment depending upon the demographics of the school’s community.
There are some practical issues as well. For example, for private K-12 schools that enroll international students, those students may not have had the opportunity to receive an FDA approved vaccine in their home country before arriving on campus. Similarly, economically disadvantaged students may have a harder time becoming fully vaccinated before returning to campus.
Conclusion
When considering whether to impose a COVID-19 requirements for students, private K-12 schools should consider the above factors as well as other issues that may be unique to their school community. Private K-12 schools may also want to consider alternatives to imposing a COVID-19 vaccine requirement, such as encouraging parents to vaccinate their students by sending communications expressing the School’s desire that all students who are eligible to receive the COVID-19 vaccine receive it before returning to school in the fall, providing local resources for vaccination appointments, and providing information on the benefits, safety, and efficacy of the vaccine from reputable sources, such as the CDC.
If private K-12 schools want to require the COVID-19 vaccine for their students, they should:
This is an evolving area, and LCW will update clients if there is further guidance or case law regarding the ability of private K-12 schools to require the COVID-19 vaccine for students.
[1] A contract is broadly defined as an agreement between two or more parties to do or not do a certain thing.
[i] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)(providing that “[b]ased on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard.”); See also 29 C.F.R. § 1630.2 subd. (r).
[ii] To state a violation of Unruh based on religious discrimination, persons must allege the following: (1) they were denied full and equal privileges to, or otherwise discriminated against by, a business; (2) a motivating reason for the denial or discrimination was the business’ perception of protected status (i.e., intentional discrimination); (3) they were harmed; and (4) the business’ conduct was a substantial factor in causing the harm. (Civ. Code, § 51; Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661; Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142; Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 27.)
This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.