Students will be able to request exemptions for medical or religious reasons. Students enrolled in online-only programs or off-campus continuing education programs will not be required to be vaccinated.
[...]
Dorit Rubinstein Reiss, a professor at the University of California Hastings College of the Law who studies laws related to vaccines, said she believes Rutgers is on solid ground in requiring a COVID-19 vaccine. But she noted two caveats.
“The wrinkle right now is right now the vaccines are still under EUA, and the other wrinkle is access. But they’re not requiring it tomorrow; they’re requiring it for the fall,” Reiss said.
She added that there is at least a chance one or more vaccines will be fully approved by the FDA by the fall.
“And even if not, although there's not legal certainty, universities have a plausible argument that it’s legal to mandate a vaccine under an EUA,” Reiss said.
Reiss pointed out that the law establishing the EUA process states that individuals who receive an EUA-approved drug must be informed not only of the option to accept or refuse it, but also of the consequences, if any, of refusal. She also pointed out that while the law speaks to the authority of the secretary of health and human services, it does not address whether a vaccine can be required in a university or employment setting.
[...]
At least two lawsuits have been filed,
one by a corrections officer in New Mexico and
one by employees of the Los Angeles Unified School District, arguing that their employers cannot mandate vaccines authorized through the EUA process.
The lawsuit from the L.A. educators, filed last week, argues that the statute establishing the EUA process "reflects a fundamental, public policy goal of striking a balance between giving people the option of having access to experimental medical products during public emergencies, while also assuring that no one is forced to accept administration of such an experimental medical product."
The suit argues that a vaccine mandate "effectively usurps that public policy objective and stands in violation of clear federal statutory authority and guidelines."
[...]
“I think they’re comfortable with the legal authority supporting this policy, and I think they are totally right,” Yang said. “Colleges and universities do routinely require vaccines, such as MMR [measles, mumps and rubella], chickenpox. I don’t see why the COVID-19 vaccine would not be put within the same category. Under the existing federal statutes and case law, colleges and universities have a broad discretion to require vaccination as a condition of a full return to campus.”
Peter Lake, the Charles A. Dana Chair and director of the Center for Excellence in Higher Education Law and Policy at Stetson University in Florida, said colleges will have to recognize potential exemptions.
"Obviously, there’s disability law that’s applicable. Public schools may have some issues with religious exemptions. But broadly speaking, unless there’s a major change in precedent, it’s not unheard-of to have required vaccinations," he said.
"I think we’re likely to see that persist," he continued. "I think the harder thing is what kind of penalties are imposed. That's going to be tricky, especially with open campus life. We have controlled access with a lot of K-12, but with open campuses, that is much trickier to police the boundaries of that."
New Jersey university may be the first to require COVID vaccination. In mandating the vaccines, which are approved under the FDA's emergency authorization process, colleges are breaking new ground.
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