Coronavirus FAQs Part 4: Vaccinations, Study Abroad, COVID-19 Policies

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. In December 2020, the Food and Drug Administration (FDA) approved vaccines for emergency use for those age 16 and older. Moderna and Pfizer-BioNTech have since applied for full FDA approval, which is still under consideration. In May 2021, the FDA approved the Pfizer-BioNTech vaccine for emergency use for those age 12-15. No vaccine is currently approved for use under age 12 as of August 2021.

Require or Encourage

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.
• State law for vaccination mandate or vaccination passport prohibitions. Some states prohibit government entities, schools, or businesses from requiring students or customers to receive COVID-19 vaccinations to gain access. Some states prohibit requiring proof of vaccination, sometimes specifically referenced as a vaccination passport, to gain access.

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 Case Western University announcement 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 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’s)  Considerations for Reopening Institutions of Higher Education for the Fall Semester 2021.

Vaccination Policy

Create a student 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.

Campus Distribution

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.

In May 2021, the Equal Employment Opportunity Commission (EEOC) updated its guidance to make clear that federal law allows employers to require employees to be vaccinated against COVID-19. However, employers must provide exemptions for employees who (1) qualify for an accommodation on the basis of disability under the Americans With Disabilities Act (ADA) or (2) have a sincerely held religious belief, practice, or observance under Title VII. For details on your institution’s obligations under these laws, consult legal counsel.

The EEOC stated that it was outside the agency’s jurisdiction to address the legal implications of emergency use authorization versus full FDA approval.

As noted below, some states forbid employers from mandating vaccinations for employees, and federal law notwithstanding, institutions must comply with such state law provisions. Consult legal counsel about your state’s requirements.

Require or Encourage

When deciding whether to require, rather than just encourage, employee COVID-19 vaccinations, review:

• Relevant CDC guidance, in addition to Part K of the updated EEOC guidance
• State law for exemption requirements – all states require the availability of a medical exemption to vaccination, and other possible exemptions include religious and philosophical beliefs.
• State law for vaccination mandate or vaccination passport prohibitions – some states prohibit government entities, schools, or businesses from requiring people to receive COVID-19 vaccinations to gain access, and some states prohibit requiring proof of vaccination, sometimes specifically referenced as a vaccination passport, to gain access.

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 Case Western University announcement 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 employees to receive the vaccine.

Vaccination Policy

Create a COVID-19 employee 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.

Campus Distribution

For information about vaccine distribution, see UE’s Dispensing COVID-19 Vaccines on Campus.

Schools that are mandating vaccines should consider whether more expansive allowances are appropriate for international students. For example, some schools mandating vaccines may allow international students to receive vaccines approved by either the FDA or the World Health Organization (WHO).

As of June 2021, the WHO approved eight COVID-19 vaccines for emergency use:

• Pfizer-BioNTech
• Moderna
• Johnson & Johnson
• Three versions of AstraZeneca
• Sinopharm
• Sinovac

Additionally, institutions may want to allow unvaccinated international students extra time once they are in the U.S. to complete a series of FDA-approved vaccinations. The CDC states in its COVID-19 vaccines clinical considerations that people vaccinated outside the United States with a non-FDA-authorized COVID-19 vaccine may be offered revaccination with an FDA-authorized vaccine if they either 1) received only partial doses of a WHO-authorized vaccination or 2) received all or some of the recommended doses of a COVID-19 vaccine that isn’t WHO-authorized. The minimal interval between the last dose of a non-FDA-authorized COVID-19 vaccine and an FDA-authorized COVID-19 vaccine is 28 days.

All schools should provide vaccination information for international students, regardless of whether vaccines are required or encouraged. For sample international student communications, see American University’s vaccination requirements for international students, Columbia University’s international student protocol for getting vaccinated and uploading documentation, and the University of Michigan’s guidelines for international students getting the COVID-19 vaccine.

Vaccination status itself isn’t a protected category (such as race, sex, or age) under equal employment opportunity laws, but the EEOC’s guidance makes clear that employers must provide certain accommodations for employees who aren’t vaccinated against COVID-19 on the basis of a disability, a sincerely held religious belief or practice, or pregnancy – which means employers can’t discriminate or retaliate against employees who don’t receive vaccinations for those reasons.

The federal prohibitions on discrimination cover employment practices like hiring and termination, job transfers and promotions, pay, fringe benefits (such as health care), and “other terms and conditions of employment.” Federal law also forbids retaliation against an employee for complaining about discrimination and harassment based on a protected category. In addition, the EEOC guidance repeatedly recommends that employers train supervisors, managers, and HR staff to avoid illegal discrimination against employees in the context of the pandemic generally and vaccinations specifically.

At the same time, however, federal employment law doesn’t prevent institutions from enacting certain policies that treat employees differently based on their vaccination status. For example, based on guidance from OSHA, employers can – and in fact, should – require unvaccinated employees to wear masks, maintain social distancing, or take other safety measures that might not apply to vaccinated employees for the purpose of preventing the spread of COVID-19 in the workplace.

Finally, institutions must consider applicable state laws. Multiple states have considered specifically prohibiting employment discrimination based on vaccination status, and at least one state, Montana, enacted such a law in May 2021. Consult legal counsel about your state’s requirements.

Consult local legal counsel about requirements under state privacy laws and how they may affect the ability to track student and employee vaccination status.

The Department of Education’s (ED’s) COVID-19 Handbook states that “institutions of higher education can consider verifying the vaccination status of their students, faculty, and staff.” The Family Educational Rights and Privacy Act (FERPA) prohibits institutions from sharing personally identifiable information (PII) in a student’s educational record, including vaccination information. Schools can record and track vaccination information in Health Insurance Portability and Accountability Act (HIPAA)-compliant recordkeeping systems, but they can’t share the PII without written consent from the student, or the student’s parent if the student is a minor.

Under federal law, the EEOC’s updated guidance indicates that employers can require employees to provide documentation of their vaccination status – but makes clear this documentation qualifies as medical information under the ADA, so schools must keep information about an employee’s vaccination status confidential and store it separately from the employee’s personnel files.

Study abroad policies and procedures should align with your school’s COVID-19 response policies, in addition to any international and local travel requirements. CDC and State Department guidance is likely to be instructive in establishing the standard of care for study abroad. Although the CDC no longer recommends halting all travel, before starting all programs again, review each region to ensure travel is feasible.

Consider limiting study abroad programs offered initially to locations where your school already has existing programs and strong local partnerships and depending on local COVID-19 conditions. For health and safety 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 Fall Semester 2021, and UE’s Guide for On-Campus Operations.

Considerations for leaders planning study abroad and international travel programs:

• Identify criteria for proceeding with, changing, or canceling a trip using U.S., international, and local travel recommendations. Prior to making decisions about specific destinations, review the State Department’s  COVID-19 Updates and the ACHA’s global health travel advisories. Additionally, review the CDC’s travel health notices, COVID-19 Travel Recommendations, and Guidance for Institutions of Higher Education (IHEs). For each potential location, examine local COVID-19 guidance, local COVID-19 infection rates, entry restrictions, vaccination, and quarantine requirements to make decisions about study abroad and international travel programs.
• Identify safety practices for travel, classrooms, meals, housing, and other activities taking place throughout the trip. Include plans for social distancing, protective equipment provisioning, testing, vaccination, quarantine, and repatriation.
• Plan for medical emergencies. Identify medical facilities or health care options at the destination. Determine whether there are adequate medical resources to support students or employees with COVID-19 and other illnesses or injuries that may occur.
• Implement tabletop exercises prior to departure for staff and leaders involved with study abroad programs to test policies, update on changes, and train employees on response. Review UE’s Crisis Response Planning: A Guide for Conducting Tabletop Exercises, Crisis Response Tabletop Exercise Scenarios, and Crisis Response Learning Program.
• Consider partnering with local partners or vendors to identify local practices, requirements, emerging risks, and medical facilities. Connect with peers hosting programs in the area to share information or partner on activities.
• 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, including indemnification provisions and waivers, review the Waivers and Contracts section of UE’s COVID-19 Response topic page.
• 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, other health outbreaks, and local security, crime, and safety. Leaders overseeing study abroad and international travel programs discussed additional emerging risks in UE’s podcast on the future of study abroad programs and the impact of the COVID-19 pandemic.

Considerations for training participants and information-sharing:

• Train study abroad participants 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. Consider periodically surveying trip participants to assess safety practices and changes in local conditions. Revise policies and training based on the survey results. Make changes to the study abroad program as needed.
• Communicate before departure with participants about the potential for trip changes, moving to online learning, or program cancelation. Do so using marketing materials, waivers, and trip orientation. Review the Waivers and Contracts section of UE’s COVID-19 Response topic page for checklists to assist with tailoring waivers to study abroad programs and activities.

Your institution will need to make its own decision on mask and physical distancing requirements unless requirements are in place for your state or locality.

Guidance from the CDC and American Academy of Pediatrics (AAP) recommends that K-12 schools require masks for all students, staff, and visitors regardless of vaccination status.

The CDC’s higher education guidance advises that campuses with fully vaccinated people may consider modifying or removing mask and physical distancing requirements. However, on July 27, 2021, the CDC added that based on new evidence on the Delta variant, fully vaccinated people should wear a mask indoors in public if they are in an area of substantial or high transmission.

The ACHA’s Considerations for Reopening Institutions of Higher Education for the Fall Semester 2021 offers several mask and physical distancing guidelines options:

• Keep all restrictions. Require masks and physical distancing for all indoor activities and large outdoor activities regardless of a person’s vaccination status.
• Create separate guidelines for fully vaccinated and unvaccinated people. Continue to require unvaccinated people to wear masks and keep a 6-foot physical distance from other people. Allow fully vaccinated people to resume pre-pandemic activities without physical distancing or masking.
• Establish a vaccination threshold to abandon restrictions. Work with public health advisors to establish this threshold for your campus population (70% or 90%, for example), after which your campus is comfortable removing all mask and physical distancing restrictions. Keep restrictions in place until that threshold is met. Continue to recommend masks and physical distancing for non-vaccinated people.
• Develop a vaccine passport for your campus that allows entry into classrooms or other public campus facilities. Some states prohibit schools and businesses from implementing vaccine passports, so speak with legal counsel before considering this option.

Continue to require masks and physical distancing on campus transit, health care facilities, and locations providing health or counseling services, per the ACHA’s Fall 2021 guidelines even if your campus removes all other restrictions.

For K-12 schools where not everyone is fully vaccinated, the CDC recommends implementing physical distancing to the extent possible while not excluding anyone from in-person learning. Maintain at least 3 feet of distance between students in the classroom where possible. Keep 6 feet of distance between students and teachers or staff.

All K-12 schools, colleges, and universities, even those that don’t require masks for everyone at all times, should emphasize that even when masks aren’t required, people still may choose to continue wearing masks.

Many institutions are considering whether to allow visitors access to on-campus activities such as campus tours, sporting events, and artistic performances.

Inviting visitors to campus creates additional risks. As with other student activities, each institution must weigh allowing visitors and the importance to students’ personal growth and educational experience against the health, safety, and liability risks and the availability of insurance. Additionally, the institution must consider its ability to conduct testing and health monitoring for any visitors.

The ACHA recommends that schools planning to allow campus visitors take these actions:

• Review local and state public health guidelines to help ensure compliance, noting that some institutional rules may not apply when your campus is used by the public.
• Increase signage at entrances used by the public to highlight campus protocols. Use signs and floor markings to manage behavior expectations.
• Clearly mark which campus spaces are and aren’t open to visitors.
• Determine in advance the types of screening and testing that will be required for visitors.
• Structure events so attendees can participate in smaller groups.
• Echo the same COVID-19 public health safety practices required of students and employees for all visitors, regardless of the reason for or duration of the visit.
• When possible, maintain a registry of guests to help with contact tracing.
• Strategically arrange event space to maintain appropriate distance and limit occupancy in indoor and outdoor event locations.
• When weather permits, consider outdoor programming.
• Provide masks, hand sanitizer, and covered trash receptacles at highly trafficked building entries.
• Determine any restricting factors for visitors, such as age or location of origin, and how these restrictions might be modified as new risk information becomes available.
• Consider whether assumption of risk forms or waivers may be appropriate. (See the Assumption of Risk Forms and Waivers section above.)

The analysis and protocols regarding common areas will largely depend on whether your campus community is fully vaccinated or not. Where the community is fully vaccinated, the CDC notes that physical distancing and required masking isn’t necessary (unless required by state, local, tribal, or territorial laws, rules, and regulations). On campuses where some people aren’t fully vaccinated, those people should continue wearing a mask when indoors (and when otherwise required). They also should practice physical distancing (keeping space of at least 6 feet between people not from the same household) in both indoor and outdoor spaces.

For K-12 schools, the CDC recommends a varied approach for physical distancing based on school type, cohort and masking practices, and level of community transmission. The CDC also suggests eliminating or decreasing nonessential in-person interactions among teachers and staff during meetings, lunches, and other situations that could lead to adult-to-adult transmission.

Depending on the school community’s vaccination status and the size of the specific common area, schools may choose to close the shared space, limit its capacity, or restrict its use to people who are fully vaccinated. It may be prudent to cancel public or non-essential group activities and events, or to reduce attendance by offering virtual participation options.

For all common areas, limit the spread of COVID-19 by ensuring ventilation systems operate properly and by cleaning and disinfecting the shared areas between uses, with special attention to high-touch surfaces. Remind students frequently (verbally and through posters, videos, etc.) to practice hand hygiene and cough and sneeze etiquette. Provide hand sanitizer and disinfectant wipes for use in common areas.

Other ways to promote physical distancing include:

• Restrict the number of people allowed so that everyone can stay at least 6 feet apart.
• Provide physical guides, such as plastic chains, cones, painted lines, or rope to help create a visual separation of different areas and help people stay 6 feet apart. In doing so, ensure equal access to people who are blind or have low vision and consider adding braille to signs or providing a tour to describe the physical guides to these people.
• Change the seating layout or block off rows, chairs, and/or table seating positions so people remain at least 6 feet apart (in areas such as classrooms, dining halls, locker rooms, laboratory facilities, libraries, student centers, and lecture rooms).
• Use single-direction entrances and exits if feasible. Minimize traffic in enclosed spaces, such as elevators and stairwells. Consider limiting the number of people in an elevator at one time and designating one-directional stairwells, if possible.
• Stagger use of shared indoor spaces such as dining halls, game rooms, and lounges. Where possible, create small groups that use the spaces on set schedules and don’t mix.
• Install physical barriers, such as sneeze guards and partitions, in areas where it is difficult for people to remain at least 6 feet apart, especially at locations such as cash registers.
• Limit occupancy in campus buses/shuttles or other vehicles. Require mask use on them by people who aren’t fully vaccinated, including drivers. Alternate or block off rows in the vehicles and increase ventilation (for example, open windows if possible).