Mandatory vaccination laws were first enacted in the early 19th century, beginning with Massachusetts’ smallpox vaccination law in 1809. Generally, courts have ruled that the policing power of States absolutely includes reasonable regulations, such as vaccinations laws, established by State legislatures to protect public health and safety. State vaccination laws are mostly applied to children for school or childcare enrollment or employees of certain health care facilities. With this in mind and in anticipation of a vaccine for COVID-19, many wonder if children and healthcare employees will be the first population sectors in which States will require compulsory vaccination under existing laws. If that is the case, many schools, childcare facilities, parents and community leaders may question if it is a “reasonable regulation” to vaccinate a population sector least affected by COVID-19, being children, to protect the public health and safety of all.
At this time, every state and the District of Columbia has a law requiring children entering school or enrolled at a childcare facility to provide documentation that they have met the state immunization requirements. Many states provide exemptions for medical, religious or philosophical reasons, which vary from state to state. The most common exemption is the medical exemption for those who may suffer known adverse effects from a vaccine. Generally, for a medical exemption, parents or guardians must provide documentation from a physician. In addition to a medical exemption, nearly all states grant exemptions for persons who oppose immunizations for religious reasons; however, in certain states a religious exemption may not be permitted during a public health emergency, epidemic and/or outbreak. Finally, exemptions based on philosophical or moral convictions in opposition to immunizations are less common and are also often not permitted during a public health emergency, epidemic and/or outbreak.
Considering it does not appear COVID-19 will wane before a vaccine is found, it is likely states will still be under a declared public health emergency or pandemic and religious or philosophical exemptions may not be available for the COVID-19 vaccine to those who hold sincere religious or philosophical beliefs against vaccines or to those who wish to rely on such exemptions because they simply are unsure if they want their children vaccinated when the vaccine is first released. Here is a State by State chart identifying those states with medical or religious exemptions, philosophical exemptions and limitations to those exemptions during a public health emergency, epidemic and/or outbreak, including states that allow for exclusion from school/childcare facility if a parent/guardian wishes to claim an exemption to vaccination during a public health emergency, epidemic and/or outbreak.
Private Schools and Childcare Facilities Vaccination Considerations and Action Items
While most state school/childcare facility vaccination laws apply to both public school as well as private schools with identical immunization and exemption provisions, private schools and childcare facilities should consider reviewing immunization policies now in relation to application of state law. A private school and/or childcare facility may desire (and have the ability) to amend their policy now to not require a COVID-19 vaccine for their population upon its early introduction. This may also be something the parents of children enrolled in private school/childcare facilities want to know now so they understand if they will be required to get the vaccine or risk exclusion (possibly continued exclusion with many schools starting virtually) from school/childcare facility if their state permits exclusion of those claim exemptions during a public health emergency.
Public School Vaccination Considerations and Action Items
Public school officials and community leaders should confirm they understand their state laws for vaccination, exemptions, exclusion and times in which exemptions are not permitted. They should consider making their populations aware of these laws and application of such laws, including possible exclusion from school/childcare facility for a claimed exemption during a public healthcare emergency. Most critically, they should engage in an open dialog now with school decision makers, Departments of Education representatives and government officials to safeguard all parties, considering what, when, how and why related to any potential vaccine which may be mandated or not.
The World Health Organization lists vaccine hesitancy as one of its top 10 global health threats. If States are going to require children to be vaccinated, and not provide religious or philosophical exemptions due to the existing public healthcare emergency, the conversation must start now to build understanding and trust. If parents/families are to have confidence in States encouraging vaccination or even requiring vaccination of their children and the belief that a vaccine is “safe and effective,” school decision makers, Departments of Education representatives and government officials must acknowledge concerns and be transparent about both the benefits and the unknowns. Schools, childcare facilities and leaders are going to need to ensure parents are informed before children are required to be vaccinated or continue to miss more in person school.
Finally, public school officials and community leaders should consider engaging government affairs groups now to force conversations with government officials, craft and propose specific policies/regulations or laws that are clearly drafted and moved through the legislative process ahead of any released vaccine.
Taylor English is uniquely positioned via its affiliate Taylor English Decisions to provide policy review, counsel on engaging your school/childcare population and government affairs strategies to address the considerations above. If you have questions, please reach out to your Taylor English attorney or the authors of this alert.