Colleges may face lawsuits over COVID-19 vaccine requirement

Colleges may face lawsuits over COVID-19 vaccine requirement

  • By Christian M. Wade Statehouse reporter
  • May 13, 2021

    

BOSTON — More colleges are telling students to get a COVID-19 vaccination before coming back to campus this fall, but legal experts say the mandates could spur legal challenges.

A stream of private and public colleges have said vaccinations will be mandatory. They include Northeastern University and Boston University, as well as all state universities in Massachusetts.

In most cases, students will be expected to arrive on campus fully vaccinated, unless they have a medical, disability or religious exemption.

Lynn Pasquerella, president of the Association of American Colleges and Universities, said more than 300 higher learning institutions have decided to require COVID-19 vaccinations and the number “continues to grow.”

“They want to make sure that the students, faculty and staff are protected in situations where there is a residential environment and the risk is greater,” she said.

Legal experts say the mandates could leave colleges open to lawsuits — even if they may ultimately be unsuccessful.

That’s because all three COVID-19 vaccines in use — produced by Pfizer, Cambridge-based Moderna and Johnson and Johnson — are only authorized for emergency use by the Food and Drug Administration.

Pfizer and Moderna are seeking full approval from the FDA, but the process is expected to take several months.

Joel Rosen, an Andover attorney who specializes in health care law, said mandating vaccines that aren’t fully FDA approved is “a bit of a gray area.”

“It does increase the likelihood that someone could successfully challenge a decision by a college to require a vaccine that is only approved for emergency use,” he said.

Still, Rosen said he doubts such a challenge would succeed.

He pointed out that public schools and colleges have for years required incoming students to be vaccinated against measles and other infectious diseases.

Meanwhile, the U.S. Equal Employment Opportunity Commission issued guidance in December that federal law doesn’t prevent private employers from requiring vaccines or proof of vaccination from employees.

“It’s hard to see how a college would be different from an employer in enacting a neutral rule which is logically calculated to preserve the health of students,” Rosen said.

To be sure, there are no federal or state mandates for COVID-19 vaccines in schools or colleges, public or private.

Gov. Charlie Baker has said he opposes vaccine “passports” and other mandates and won’t require the state’s workforce to get vaccinated.

Baker, a Republican, has also pushed back on questions about whether he will require students to get vaccinated, with 12-15 year-olds becoming eligible on Thursday.

Last month, Massachusetts’ 15 community colleges said they don’t plan to mandate vaccinations, citing concerns about the potential impact on minorities and other students with “disproportionate access” to vaccines and the fact most don’t have on-campus housing.

Lane Glenn, president of Northern Essex Community College, said he believes mandates won’t be necessary because most college students will be vaccinated by the fall.

“We are expecting 80 to 90% of our students to be vaccinated,” he said. “So by the time September rolls around, I suspect this will be much less of an issue.”

Glenn also suggests there is a profit motive behind the decision of large private universities to require vaccines for on-campus students.

The cost of room and board can range from $12,000 to $15,000 a year. Many private colleges took big financial hits last year after shutting down their campuses and moving to remote learning.

“The money involved in dormitories and cafeterias is too huge to pass up,” he said.

Pasquerella said the mandates face pushback in states such as Florida, where Gov. Ron DeSantis recently signed a law banning businesses, schools and local governments from requiring proof of vaccination.

The University of California’s sprawling 23 campus system also plans to require students to get vaccinated in the fall, but not until the FDA has given final authorization.

Meanwhile, lawmakers in more than 40 states have filed proposals seeking to ban or curtail vaccine mandates, according to the National Conference State Legislatures.

Rosen said he expects legal challenges from conservative groups, anti-vaccine groups or others “who believe the vaccines are somehow dangerous.”

“This country is so divided,” he said. “Unfortunately, something that should be a medical decision has become a political decision. But the benefits outweigh the risks.”

Christian M. Wade covers the Massachusetts Statehouse for North of Boston Media Group’s newspapers and websites. Email him at cwade@cnhinews.com

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