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Rutgers University announced Thursday that it would require students to be vaccinated against COVID-19 before coming to campus next fall.
The public institution in New Jersey may be the first or at least among the first universities to take the step of mandating students receive a COVID-19 vaccine. Three different vaccines are currently authorized for emergency use, but not yet fully approved, by the U.S. Food and Drug Administration. In making the decision on whether to require vaccines approved through the emergency use authorization (EUA) process, colleges are treading untested legal ground.
Antonio Calcado, executive vice president and chief operating officer at Rutgers, said the vaccine requirement had been thoroughly reviewed by the university’s Office of General Counsel.
He said the university, which currently is conducting about 97 percent of its classes online, wants to find a way to bring students back to campus safely.
“I’m looking out the window now and my campus is just empty,” Calcado said. “There’s no one even walking the streets. We need to use every tool available to us to be able to bring back the college experience for our students. They deserve the college experience.”
Calcado said the policy is getting a range of reactions.
"When you make a decision of this magnitude, it’s not going to be popular with everyone," he said. "We have students who will push back. We have students and families that are ecstatic that we are requiring this because they feel that their son or daughter or loved one is going to be that much safer as they come to college. It really runs the spectrum."
Rutgers is requiring students to provide proof they have received a vaccine authorized for use in the U.S. (currently those produced by Moderna, Pfizer and Johnson & Johnson). Although they will not accept other vaccines approved internationally, university officials say they will work with international students to help them get vaccinated upon their arrival in the U.S.
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.
Just one vaccine, manufactured by Pfizer, is currently approved for individuals under 18 (those aged 16 and up), meaning that as of now there's just one option for incoming freshmen who haven't yet turned 18.
Vaccine supply is expected to ramp up rapidly in the coming months, with federal officials saying that all American adults should be able to get at least their first shot by the end of May.
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.
The Equal Employment Opportunity Commission issued guidance in December suggesting that employers can require employees to get COVID vaccines. Additionally, the Centers for Disease Control and Prevention guidance on COVID-19 vaccination states that while the FDA does not mandate vaccines, "whether a state, local government, or employer, for example, may require or mandate COVID-19 vaccination is a matter of state or other applicable law."
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."
Tony Yang, a professor of health policy and management at George Washington University, in Washington, D.C., said it would be helpful for the federal government “to provide some kind of clear guidance on this particular issue. The federal government should clarify EUA versus full approval does not matter for mandating vaccinations,” he said.
In any case, Yang agrees with Reiss that Rutgers is likely on solid legal ground.
“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."