Icon

Coronavirus FAQs Part 4: Mandatory Vaccinations, Student Activities, Study Abroad, Testing

United Educators (UE) understands that COVID-19 continues posing unprecedented challenges for schools, colleges, and universities. As schools face short- and long-term issues related to students being away from school, staff continuing online instruction, and revered traditions halted, we’re here to help. Here are UE’s answers to member questions about mandatory vaccinations, student activities, study abroad, and testing associated with COVID-19.

Mandatory Vaccinations

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.

Student Activities

When deciding whether to allow in-person student activities such as clubs and athletics, weigh the activities’ importance to students’ personal growth and educational experience against the health, safety, and liability risks the COVID-19 pandemic poses.

For any in-person activities, make participation phased and voluntary. With the help of your school’s COVID-19 action team, create an activity resumption plan that outlines how you will restart any in-person activities and detail activity modifications to meet campus safety requirements and COVID-19 policies. Consider whether enforcement practices, such as collecting a signed acknowledgment, creating an assumption of risk or waiver, or adding language to the student code of conduct, are right for your institution to help conduct activities safely.

For additional athletics considerations and guidelines, review the NCAA’s Sport Science Institute COVID-19 page. For guidance regarding all activities including athletics, consult In-Person Activities and Athletics and the ACHA’s Considerations for Reopening Institutions of Higher Education for the Spring Semester 2021.

Study Abroad

CDC and State Department guidance is likely to be instructive in establishing the standard of care for study abroad. These agencies recommend schools continue to pause student study abroad programs due to unpredictable circumstances, travel restrictions, and challenges regarding returning home or accessing health care while abroad.

If schools decide to act contrary to that guidance, they may jeopardize participant safety and expose themselves to liability. For that reason, consult with legal counsel before taking any actions with your study abroad program that goes against CDC and State Department guidance.

Study abroad policies and procedures should align with your school’s COVID-19 response policies. For scenarios to consider when updating study abroad policies, consult external guidance and peer policies, including the Forum on Education Abroad’s Guidelines for Conducting Education Abroad During COVID-19, the ACHA’s Considerations for Reopening Institutions of Higher Education for the Spring Semester 2021, and UE’s Guide for Resuming On-Campus Operations.

  • Review international and local travel recommendations. Prior to making decisions about specific destinations, review the State Department’s Guidelines for Conducting Education Abroad During COVID-19, the ACHA’s global health travel advisories, the CDC’s travel health notices, and local guidance to make decisions about study abroad programs and to learn about local COVID-19 safety and quarantine requirements and restrictions. Identify criteria for proceeding with, changing, or canceling a trip.
  • Plan for medical emergencies. This includes identifying medical facilities at the destination. Determine whether the destination has medical resources to support students or employees with COVID-19 illness and other injuries or illnesses that may occur.
  • Identify safety practices for travel, classrooms, meals, housing, and other activities throughout the trip, including plans for social distancing, protective equipment provisioning, testing, vaccination, quarantine, and repatriation.
  • Update vendor contracts to require that they adhere to all institutional and local safety policies. Work with legal counsel to determine whether contracts also should include force majeure clauses addressing the need for sudden pandemic-driven trip changes or program cancellations. For more resources related to updating contracts and waivers, review the Waivers and Contracts section of UE’s COVID-19 Response landing page.
  • Train study abroad stakeholders on your institution’s COVID-19 policies, as well as any trip-specific safety practices and hazards as part of pre-trip and onsite orientation. Periodically survey trip participants to assess safety practices and changes in local conditions. Revise policies and training based on the survey results.
  • Communicate with participants about the potential for trip changes, return to online learning, or program cancelation. Do so using marketing materials, waivers, and trip orientation.
  • Prepare for sudden remote operations and repatriation should the destination prohibit in-person activities once the study abroad program has begun. These UE resources may help with crisis response planning: Prepare for Medical Evacuations Abroad, Assessing Safety of Travel Abroad, Crisis Response Abroad, Manage the Risks of Remote Learning in Higher Education, and Manage Minors in K-12 Remote Learning.
  • Consider risks beyond COVID-19, including student mental health and other health outbreaks.

Testing

Testing options and requirements vary by state. UE strongly recommends consulting legal counsel and public health authorities to ensure your institution conducts testing appropriately and minimizes its exposure.

The ACHA’s Considerations for Reopening Institutions of Higher Education for the Spring Semester 2021 notes that, where possible, testing frequently and on a recurring basis is preferred. ACHA recommends conducting diagnostic testing at the following intervals:

  • Pre-arrival – Require a negative test result before a student or staff member arrives on campus.
  • On arrival – Test all students and staff returning to campus regardless of exposure, signs, or symptoms.
  • Surveillance – Conduct ongoing regularly scheduled testing of a randomly selected percentage of the campus population to help determine what percentage of the population may be infected with the virus.

UE is aware of the following scenarios in which our members are handling COVID-19 testing:

  • Complete in-house testing – Institutions, mostly universities with medical research facilities, are converting existing labs into COVID-19 testing centers.
  • Processing samples, but not offering the test – Institutions are using their labs to receive and process samples but aren’t offering testing onsite.
  • Partnering with other institutions in the system – Institutions in systems that include a medical university are partnering to offer on-campus testing sites.
  • Partnering with local health authorities – Institutions with limited ability to convert facilities into testing labs are partnering with local health authorities. Unlike in-house or third-party testing, these testing sites are generally open to the public.

When partnering with other testing providers, incorporate indemnification language for your institution into the contracts. If your institution is unable to provide tests, refer staff and students to off-campus providers.

UE strongly recommends consulting legal counsel and public health authorities when creating a COVID-19 testing plan. If your institution chooses to conduct in-house testing, some considerations for managing your institution’s liability include:

  • Communicating clearly about expectations for testing. Ensure campus stakeholders know your institution’s capacity for assisting with testing. Be compassionate but clear about your instructions and limitations. If your institution is unable to offer onsite testing, help your stakeholders understand why.
  • Incorporate indemnification for your institution into contracts with third-party testing providers. For more information, UE’s Improving Contracting on Campus: Allocating Risks Between Parties provides recommended practices for limiting exposure to liability.
  • Consider whether your institution will pay for testing, and in which instances. For example, will your institution provide free testing to staff and students?
  • Create a contact tracing plan. Local health departments are responsible for contact tracing. Work with local health authorities and legal counsel to determine what role your school will play in notifying the health department of positive tests and providing assistance as requested.


Note for UE members: UE’s risk management advice is distinct from the coverage provided under its policies. To understand UE’s insurance coverage for COVID-19 testing and vaccination efforts, administrators responsible for your institution’s insurance program should read UE’s recent coverage advisory.


By Melanie Bennett, JD, Senior Risk Management Counsel, and Liza Kabanova, JD, Risk Management Consultant

More From UE
Coronavirus Part 1: Campus Health, School Closures, International Issues
Coronavirus Part 2: Employment Practices
Coronavirus Part 3: Emergency Response, Remote Operations, Return to Campus
Responding to the Coronavirus Outbreak