This is a question for your legal counsel and depends on many factors, including state law, school type, and vaccine availability.
When deciding whether to require student COVID-19 vaccinations, consider current vaccine restrictions and limitations. In December 2020, the Food and Drug Administration (FDA) approved vaccines for emergency use for those age 16 and older, though at least one COVID vaccine is only indicated for use by those 18 and over. Most students are low on the vaccination priority list or excluded due to age. Avoid creating a mandate before COVID-19 vaccinations are widely available for students.
When deciding whether to require, rather than just encourage, student COVID-19 vaccinations, review:
- Relevant Centers for Disease Control and Prevention (CDC) guidance. Some states may eventually mandate the vaccine for school attendance.
- State law for exemption requirements. All states require the availability of a medical exemption to vaccination. Other possible exemptions include religious and philosophical beliefs.
If you mandate COVID-19 vaccinations, communicate your new policy and implementation plans to the campus community. For examples of announcements and plans, see the California State University System announcement (contingent on the COVID-19 vaccines receiving full FDA approval) and the Cornell University vaccination FAQ. Additionally, the Chronicle of Higher Education’s List of Colleges That Will Require Vaccinations links to each institution’s announcement.
If you can’t or don’t mandate the COVID-19 vaccine, use communication campaigns and positive reinforcement to encourage eligible students to receive the vaccine when it is made available. For campaign ideas, review the American College Health Association’s (ACHA) Considerations for Reopening Institutions of Higher Education for the Spring Semester 2021.
Create a COVID-19 vaccination policy with the help of legal and medical counsel. Work with legal counsel to stay current on state and federal requirements and adjust your policy accordingly. Also review your institution’s vaccination policies for other highly transmissible diseases such as the flu and the measles to ensure your vaccination practices aren’t contradictory.
If your institution chooses to offer the vaccine to your campus population, create a campus distribution plan addressing:
- Overall infrastructure
- Site details
- Supplies
- Personnel
- Recordkeeping
After completing your plan, train leaders and onsite personnel.
Generally, yes. The Equal Employment Opportunity Commission (EEOC) updated its guidance on COVID-19 (section K) to make clear that employers can require most employees to be vaccinated as a condition of physically entering the workplace. But employers must comply with the reasonable accommodation requirements of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act for employees who have disabilities precluding vaccination or sincerely held religious beliefs or practices against vaccination.
“Direct Threat” Analysis for Mandating Vaccines
Under the ADA, employers can implement a safety standard requiring that employees not pose a “direct threat” to the health or safety of others in the workplace, which justifies mandating a COVID-19 vaccine. If an employee claims a medical condition (such as a history of severe allergic reactions or a compromised immune system) prevents them from being vaccinated, to still require the employee receive the vaccine the employer must conduct an individualized assessment to show the unvaccinated employee would pose a “significant risk of substantial harm” to health or safety in the workplace (a direct threat) because the person could expose others to the virus. The employer also has to show the threat can’t be eliminated or reduced to an acceptable level by a reasonable accommodation – such as working remotely – without undue hardship.
In the ADA context, undue hardship means “significant difficulty or expense” and may include considerations such as how many other employees in the workforce are vaccinated and how much contact the unvaccinated employee would have with people whose vaccination status might be unknown. The EEOC refers employers to CDC recommendations and Occupational Safety and Health Administration (OSHA) standards for help in determining whether an effective accommodation that doesn’t create an undue hardship is available for particular job duties and workplaces.
Disability Accommodations
The EEOC guidance clarifies that the vaccine itself isn’t a “medical examination” and that requiring employees simply to show proof of vaccination doesn’t qualify as a “disability-related inquiry” under the ADA (assuming the employer refrains from asking why an employee wasn’t vaccinated). However, pre-vaccine screening questions are “disability-related” under the ADA if asked by an employer (or contractor) administering the vaccine. The questions are still permissible if the employer reasonably believes, based on objective evidence, that an employee who doesn’t answer the screening questions (and as a result isn’t vaccinated) poses a direct threat to the health or safety of the employee or others. If vaccines are voluntary rather than mandatory, and an employee declines to answer pre-screening questions, the employer can decline to give the vaccine – with no adverse consequences to the employee.
Religious Accommodations
If an employee requests an exemption from a vaccine requirement due to sincerely held religious practices or beliefs – which need not be widely held – the employer must provide a reasonable accommodation unless it would create an undue hardship under Title VII. The undue hardship standard under Title VII is less difficult for employers to meet than under the ADA: it means more than a very slight cost or burden. The EEOC cautions that employers “should ordinarily assume” requests for religious accommodations arise from sincerely held beliefs and not probe further without an “objective basis” for doing so. The EEOC states that an employer may physically exclude from the workplace an employee who can’t be vaccinated against COVID-19 either because of a disability or a sincerely held religious belief or practice if no reasonable accommodation is possible – for example, if their job duties must be performed onsite and the employee can’t be separated from other employees, reassigned, or put on leave under applicable laws (such as the Family and Medical Leave Act (FMLA)) or the employer’s policies. However, this doesn’t justify the employee’s automatic termination; the employer must consider whether the employee is protected by other federal, state, or local laws.
Confidentiality
Employers must keep confidential any employee medical information obtained through vaccination programs. The EEOC specifically reminds “managers and supervisors” that disclosing an employee’s accommodation or retaliating against an employee for seeking an accommodation are against the law.
Additional Guidance
Whether an institution should require – rather than encourage – employees to be vaccinated against COVID-19 is a business decision about which it should first consult legal counsel and implement a clear written policy. Institutions that decide to mandate vaccinations will need further legal advice when responding to employees who seek disability or religious belief/practice exemptions. Consult counsel with in-depth knowledge of the ADA, Title VII, and other laws that may give employees additional protections; schools with unionized employees need an attorney with appropriate labor law experience to determine if a mandatory vaccine policy can apply to covered employees under current collective bargaining agreements – or if it’s necessary to give unions notice and bargain over changes.