Can Universities Mandate That Students Take the Covid-19 Vaccine?

[06.11.2021]

Many colleges and universities are requiring that students obtain the covid-19 vaccine. This is a controversial decision and legally risky. The covid-19 vaccine has been authorized for use by the Food and Drug Administration (“FDA”) under the Emergency Use Authorization statute. 

The covid-19 vaccine has not received final approval by the FDA and, therefore, is classified as an experimental drug.  

There have been lawsuits against universities requiring students to be vaccinated in the past. For example, a lawsuit was filed against the University of California, asking the Court for a preliminary injunction after the school required students, faculty, and staff to take the flu vaccine. The University of California won that lawsuit as the Court refused to issue a preliminary injunction. See Kiel, et al. v. The Regents of the University of California, et al., HG20072843 (Cal. Superior Ct., Alameda Cty.)  Historically, mandated vaccines have been upheld after the FDA has fully approved them. However, there is no legal precedent in which a Court has upheld a mandatory vaccine that the FDA has not fully approved.

The Federal statute authorizing emergency use for experimental drugs dictates that any person being administered an unapproved drug must be informed of the significant risks, the extent that the risk is unknown, and of his or her right to refuse administration of the drug. See 21 U.S. Code §360bbb-3e(1)(A). Further, the Centers for Disease Control has stated that vaccines are not allowed to be mandatory under the emergency use authorization. Any mandatory covid-19 vaccination directive is a direct violation of Federal law.  

Private and independent schools may have fewer hurdles to jump through than public institutions. However, the public policy behind the emergency use authorization statute is that it is unconscionable to require a person to be administered an experimental drug. This opens many of these colleges and universities to lawsuits on this issue if they mandate the covid-19 vaccine.

The FDA has classified the covid-19 vaccines as experimental due to the limited amount of data it has about the vaccine at this time. The FDA will rely on clinical trials that will last at a minimum of two years to adequately collect sufficient data to determine whether the vaccine is safe and effective enough to be licensed and fully approved. There is much that the FDA does not know about the covid-19 vaccines.

The emergency use authorization statute requires that all promotional material clearly state that the vaccine is not approved or licensed by the FDA. Furthermore, by law, any student mandated to take the covid-19 vaccine has to offer religious and medical exemptions via the Americans with Disabilities Act.  

Mandatory vaccine policies are becoming even more complicated by executive and legislative actions. The governor of Texas issued an executive order banning state agencies and private organizations that receive public funding from requiring proof of the covid-19 vaccine. Florida’s governor issued a similar executive order banning businesses from requiring customer’s proof of the covid-19 vaccine and preventing any government agency from issuing documentation of proof of the covid-19 vaccine. A number of states are seeking to pass legislation that would ban covid-19 vaccination requirements.  

In a similar vein, there are at least two pending lawsuits against employers who have mandated the covid-19 vaccine for employees. A lawsuit was filed in New Mexico Federal District Court by an employee at a correctional facility in February 2021. See Legaretta v. Macias, et al. In a second lawsuit, seven employees, along with California Educators for Medical Freedom, filed a federal lawsuit against the Los Angeles School District for a mandatory covid-19 vaccine in March 2021. See California Educators for Medical Freedom et al., v. The Los Angeles Unified School District et al. This lawsuit not only mentions the violation of Federal law but also alleges that the mandate violates basic human rights by requiring employees to take an experimental drug.  

There is no clear-cut answer to whether colleges and universities can mandate the covid-19 vaccine. However, it is clear that these covid-19 vaccine mandates will result in numerous legal challenges in the upcoming months.  

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Related: COVID-19