With the pandemic under greater control and vaccines increasingly available, independent schools are entering this summer looking to take a well-deserved break.  One issue on the top of many school's summer to-do list is to determine whether to require students to be vaccinated against COVID-19, once eligible.  This critical decision will require schools to weigh state legal mandates, the makeup of their student populations, and their own school culture. 

Currently, the Pfizer vaccine is available under emergency use authorization for anyone 12 years old and older—and the company has represented that it anticipates that everyone 6 months and older should be eligible by the end of 2021.  Therefore, even schools with younger student populations should prepare now for when the vaccine is more widely cleared.

Intersection of Student Vaccinations and State Laws

Whether independent schools may require vaccination of students is subject to state law.  All states and the District of Columbia have student immunization laws, whereby students are required to be immunized with a state-approved list of vaccinations prior to attending school.  Unsurprisingly, the COVID-19 vaccine is not presently on any state's list—and may not be for some time—given that the vast majority of K-12 students are still not eligible to receive it. 

Nevertheless, these laws still provide independent schools with a useful framework for implementing a COVID-19 vaccine mandate.  Schools that decide to implement a mandate should therefore follow their state's student vaccination laws, including any exemptions permitted under those laws.  All states and DC permit exemptions for medical reasons, whereas 44 states and DC permit religious objections, and only 15 states permit philosophical objections.  This list, however, is constantly evolving.  For example, Maine and Connecticut recently removed their religious exemptions (though Connecticut's update will not take effect until the 2022-2023 academic year), and have joined 4 other states—California, Mississippi, New York, and West Virginia—in permitting only medical exemptions. 

Further, some states, like Oklahoma, Michigan, and Pennsylvania, are introducing new legislation prohibiting institutions (some including schools) from requiring the COVID-19 vaccine.  Other states, like New Hampshire, have issued more informal advisories indicating that schools may not issue COVID-19 vaccine mandates.  It is still unclear how courts may enforce these efforts, or how these laws or advisories may otherwise impact an independent school's ability to mandate vaccination as a matter of public policy.  Therefore, schools should consult legal counsel to best understand the current status of vaccination laws in their state when making a decision.

Weighing Value of Mandates vs. Encouragement

With this legal framework in mind, independent schools should weigh numerous practical considerations when determining whether to mandate COVID-19 vaccination.  A vaccine mandate should enable schools to more quickly lift COVID-19 restrictions and costs.  For example, as larger numbers of students become vaccinated, schools can reduce resources on tracking and managing daily health screening or implementing robust testing protocols.  Further, a mandate should, at a fundamental level, make a campus safer, which may impact community member support and morale, particularly from employees.  Indeed, for these reasons, over 450 colleges and universities have decided to mandate COVID-19 vaccination for students returning in the fall.

Of course, vaccine hesitancy is still persistent across the US.  Whether families are concerned about the emergency use status of the approved vaccines, or they are just generally distrustful of child vaccinations, a COVID-19 vaccine mandate may be negatively received by a school's community.  A mandate will also likely impose additional logistical and administrative burdens on a school to acquire and track student vaccination throughout the school year.  Schools should therefore be mindful of community COVID-19 rates, and trends towards vaccination, in determining whether a mandate is right—or even necessary—for their school culture.

Practical Steps Schools Should Take Now to Address COVID-19 Vaccination

Regardless of whether your school has decided to mandate COVID-19 vaccination for students once eligible, we suggest taking the following practical steps:

  • Implement robust education and programming for children and families regarding child vaccination.  We recommend collaborating with local resources, such as the local board of public health, to provide education and materials to your community.  These measures may help reduce hesitancy and increase vaccination rates, even without a mandate. 
  • Update back-to-school health forms to track whether students have received the COVID-19 vaccine.  Even if not mandating vaccination, this information may be useful to independent schools as they assess risk levels on campus.  Any document updates should note that parents are obligated to update their response throughout the school year, particularly as younger students become eligible to receive the vaccine.  Schools may also want to consider seeking information regarding the precise vaccine manufacturer, particularly for international students who may have received vaccines that are not recognized by the Food and Drug Administration (FDA) or the World Health Organization (WHO), such as Sputnik V or Covaxin.
  • Update your school's tailored pandemic policies for various vaccination-related issues.  For example, will your school implement different protocols for vaccinated vs. unvaccinated students?  If mandating vaccination, will your school mandate vaccination for students who were already infected with COVID-19?  Or will you accept vaccinations by providers not recognized by the FDA or WHO?  Further, will your school update its testing or surveillance policies in light of vaccination rates?  Schools should consider these important issues now and document their positions clearly so that families are well informed regarding the school's approach in the fall. 
  • If schools haven't already, they should consider updating other foundational documents, like student handbooks or enrollment contracts, to account for immunizations, communicable illnesses, and accommodations.  These policies and provisions should provide schools with discretion and flexibility to impose health- and safety-related requirements—even those in excess of any state mandates—as well as valid bases for exemptions that are consistent with state law. 
  • Consider whether to implement any limitation of liability documentation as students return to campus with lightened restrictions.  Many schools considered this approach last summer, and often had to weigh the benefits and drawbacks—both legal and practical—of legal releases/waivers as opposed to more general notices and disclosures of risk.  These documents are often governed or impacted by state law, and should be drafted carefully with the help of legal counsel. 

*          *          *

As has been common throughout pandemic, the legal landscape is fast evolving and guidance is being updated frequently.  We recommend that schools continue to monitor this issue carefully as we approach school reopening in the fall, and make adjustments, as needed.

McLane Middleton's Education Practice Group recently offered a webinar on student vaccinations, which can be accessed here.   We encourage you and your team to watch the recording to learn more about this evolving topic.  Should you have any questions or need assistance, please reach out to our team of trusted education attorneys.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.