Mandatory SARS-CoV-2 Vaccinations in K-12 Schools, Colleges/Universities, and Businesses | Law and Medicine | JAMA | JAMA Network
[Skip to Navigation]
Sign In
Views 14,946
Citations 0
Viewpoint
June 7, 2021

Mandatory SARS-CoV-2 Vaccinations in K-12 Schools, Colleges/Universities, and Businesses

Author Affiliations
  • 1O'Neill Institute for National and Global Health Law, World Health Organization Collaborating Center on National and Global Health Law, Georgetown Law, Washington, DC
  • 2Upstate Golisano Children’s Hospital Epidemiologist, Pediatric Infectious Diseases, SUNY Upstate Medical University, Syracuse, New York
  • 3Institute for Vaccine Safety, Department of International Health, Department of Health, Behavior and Society, Johns Hopkins Bloomberg School of Public Health, Baltimore, Maryland
JAMA. Published online June 7, 2021. doi:10.1001/jama.2021.9342

The Centers for Disease Control and Prevention (CDC) recently issued guidance that fully vaccinated individuals can safely remove masks and end social distancing in most indoor settings.1 Educational facilities and businesses are faced with whether and how to differentiate between vaccinated and unvaccinated individuals, including requiring proof of vaccination. Mandatory vaccination has historically served as a tool to reach and sustain high immunization coverage and to prevent transmission in K-12 schools, colleges/universities, and health care facilities. Vaccine mandates could extend to workers and customers in businesses to ensure safer environments. This Viewpoint examines the epidemiologic, public health, and legal considerations for mandatory SARS-CoV-2 vaccinations in each setting.

K-12 Schools

States have police powers to safeguard the public’s health, which includes mandatory vaccination. Every state currently requires childhood vaccinations as a condition of school entry, often aligned with the CDC’s Advisory Committee on Immunization Practices recommendations, although there is wide variability among states. All states grant medical exemptions, 44 states and the District of Columbia grant religious exemptions, 15 states allow philosophical exemptions, and 6 states grant only medical exemptions.2

Although SARS-CoV-2 infections among children are typically asymptomatic or mild, severe symptoms can lead to hospitalization. Rare cases of multisystem inflammatory syndrome in children also occur. As of May 27, 2021, the American Academy of Pediatrics and the Children’s Hospital Association jointly reported 3 977 870 cumulative pediatric COVID-19 cases, 16 525 cumulative hospitalizations, and 322 cumulative deaths.3 These data represent underreporting of the true extent of SARS-CoV-2 infection in children because many states did not contribute to the joint report and the number of children infected but not tested and confirmed infected is unavailable. New pediatric infections are increasing, with children currently comprising 24% of new SARS-CoV-2 cases for the week ending May 27, 2021.

The Food and Drug Administration (FDA) has granted Emergency Use Authorization (EUA) for 3 SARS-CoV-2 vaccines. The FDA recently extended its EUA for the BNT162b2 (Pfizer-BioNTech) vaccine to 12- to 15-year-olds. The American Academy of Pediatrics also recommends SARS-CoV-2 vaccinations for all eligible youths. The FDA could decrease the age of eligibility to 6 months by January 2022 and is expected to issue a full Biologics License Application for the BNT162b2 vaccine before the 2021-2022 school year.

Vaccination of children is essential to gain high vaccination coverage and mitigate transmission. BNT162b2 vaccine was reported to be 100% effective in protecting adolescents aged 12 to 15 years against symptomatic disease. Mounting evidence also shows that all authorized COVID-19 vaccines reduce SARS-CoV-2 transmission.4 Children spend substantial time at school, day care, and after-school activities. Vaccines therefore will provide important direct and indirect benefits.

Despite clear benefits of childhood vaccination, school mandates do not yet meet public health criteria such as postmarketing surveillance establishing longer-term safety and strong support from health care professionals and the public.5 SARS-CoV-2 vaccine mandates in children would be premature. Using incentives instead of mandates would avoid public backlash that could undermine the SARS-CoV-2 vaccine rollout.

Postsecondary Education

Colleges and universities often require on-campus students to be vaccinated against viral infections such as measles, mumps, rubella, and meningococcal disease, especially those living in crowded settings, including residence halls and other congregate settings (eg, fraternity and sorority houses). Postsecondary educational institutions that remained open during the 2020-2021 school year experienced SARS-CoV-2 spread higher than the national average, with more than 660 000 reported probable and confirmed cases and 100 deaths.6

Consequently, many colleges and universities have announced plans to mandate vaccinations for students, and others have included faculty and staff. These institutions have not faced successful legal challenges to their current vaccine mandates, and it is likely the courts would support mandatory SARS-CoV-2 vaccines. The Equal Employment Opportunity Commission (EEOC) has issued guidance saying that vaccine mandates would be lawful, even under an EUA. Institutions, however, must grant medical and religious exemptions.

International students may not have access to FDA-authorized vaccines, so determining which products to include in the mandate will be key. The World Health Organization (WHO) has given emergency use listing for all FDA-authorized vaccines, as well as for the Sinopharm, Sinovac, and Oxford University/AstraZeneca vaccines. For international students, US universities could potentially accept all vaccines that receive WHO emergency use listing. Educational institutions will also have to decide the safety protocols for individuals with medical or religious exemptions, including remote learning or a rigorous protocol of testing, symptom monitoring, and mask usage.

Businesses

Employees with close and prolonged contact with coworkers, customers, or both have increased risk of acquiring and transmitting infection. Superspreader events have been linked to bars, restaurants, weddings, churches, athletics, and food processing plants. A large percentage of the population is at risk of SARS-CoV-2: as of June 2, 2021, approximately 41% of the population had been fully vaccinated7; children younger than 12 years are not eligible, and others are immunosuppressed and may remain at risk for severe infection and transmission despite vaccination.

The Occupational Safety and Health Administration, as well as tort law, requires employers to provide a safe and healthy workplace. The administration recommends no-cost SARS-CoV-2 vaccinations for all eligible employees. EEOC guidance specifically permits businesses to require SARS-CoV-2 vaccination as a condition of employment, provided employers offer medical and religious exemptions. Asking for immunization status does not violate the right to privacy, provided the information is secure and does not require additional medical information. HIPAA (Health Insurance Portability and Accountability Act) applies only to health information kept by “covered entities,” primarily those providing health care services.

Despite EEOC guidance, businesses must comply with the law in the states in which they operate. At least 11 states have enacted laws (4) or issued executive orders (7) restricting SARS-CoV-2 mandates or proof of vaccination. Statutes or executive orders vary considerably in scope, with some limiting employer verification of vaccine status and others applying only to state and local agencies.

Unless proscribed by state law, private companies have wide discretion in conducting their business operations, provided they do not discriminate according to race, sex, disability, or other legally protected status. Businesses often set conditions on offering goods and services, such as requiring “shoes, shirts, and masking.” CDC guidance distinguishes between vaccinated and unvaccinated individuals, advising the latter to continue to mask and distance. Yet CDC leaves the private sector to implement its recommendations. The airline industry is testing mobile applications to verify immunization status of crew and passengers. New York is piloting its Excelsior Pass, allowing patrons to upload proof of vaccination or negative SARS-CoV-2 test results through written documentation or a digital application. Companies such as Walmart are providing economic incentives for vaccine status, and some include electronic verification. President Biden also called on employers to provide paid time off for vaccination and time needed to recover from vaccine-related adverse effects.

Mandating or Incentivizing SARS-CoV-2 Vaccinations

Mandates and proof of vaccination are likely to enhance coverage and do so equitably, provided that doses are available to all without barriers, irrespective of socioeconomic or other status. High vaccination coverage is the single most effective way for a safer return to normal activities. Mandates are most effective if high vaccination coverage cannot be achieved through other methods, reducing the risk that mandates could provoke a backlash.

Positive incentives could boost vaccination rates, including cash payments or time off from work, or reimbursement of childcare expenses associated with accessing a vaccine. Incentives at colleges and universities could include enforcement of recent CDC masking and distancing guidance, allowing vaccinated students to forgo mask wearing and attend social functions without distancing constraints. Furthermore, requiring unvaccinated individuals to undergo rigorous safety protocols (eg, testing, symptom monitoring, masking), or working or learning remotely, could encourage individuals who are vaccine hesitant. Educational institutions or businesses could also routinely offer SARS-CoV-2 vaccines at no cost, requiring individuals to affirmatively opt out, perhaps with an appropriate process, such as a brief vaccine literacy course, a written explanation for refusal, or both. Routine offering of vaccines with a process for opting out has been shown to boost vaccination coverage.

The goal of SARS-COV-2 vaccination programs is to end the pandemic and maintain control of COVID-19 disease. Achieving this goal requires very high and homogeneous vaccine coverage to establish and maintain herd immunity. Vaccine mandates are a potential tool to achieve high vaccine coverage and may be valuable in addition to other public health interventions.

Back to top
Article Information

Corresponding Author: Lawrence O. Gostin, JD, O'Neill Institute for National and Global Health Law, Georgetown Law, 600 New Jersey Ave NW, McDonough 568, Washington, DC 20001 (gostin@georgetown.edu).

Published Online: June 7, 2021. doi:10.1001/jama.2021.9342

Conflict of Interest Disclosures: Mr Gostin reported being the director of the World Health Organization Collaborating Center on National and Global Health Law. Dr Shaw reported serving on a Pfizer speakers’ bureau for meningococcal vaccine. Dr Salmon reported receiving research grants from Merck and Walgreens, and is a paid member of an advisory board for Janssen.

References
1.
Centers for Disease Control and Prevention. Interim public health recommendations for fully vaccinated people. Updated May 13, 2021. Accessed May 20, 2021. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html
2.
National Conference of State Legislatures. States with religious and philosophical exemptions from school immunization requirements. Accessed May 20, 2021. https://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx
3.
American Academy of Pediatrics. Children and COVID-19: state-level data report. Updated May 17, 2021. Accessed May 20, 2021. https://services.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/children-and-covid-19-state-level-data-report/
4.
Centers for Disease Control and Prevention. Science brief: COVID-19 vaccines and vaccination. Updated May 27, 2021. Accessed May 20, 2021. https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/fully-vaccinated-people.html
5.
Opel  DJ, Diekema  DS, Ross  LF.  Should we mandate a COVID-19 vaccine for children?   JAMA Pediatr. 2021;175(2):125-126. doi:10.1001/jamapediatrics.2020.3019PubMedGoogle ScholarCrossref
6.
New York Times. Tracking coronavirus cases at US colleges and universities. Updated April 30, 2021. Accessed May 20, 2021. https://www.nytimes.com/interactive/2021/us/college-covid-tracker.html
7.
Centers for Disease Control and Prevention. COVID data tracker: COVID-19 vaccinations in the United States. Accessed May 20, 2021. https://covid.cdc.gov/covid-data-tracker/#vaccinations
Limit 200 characters
Limit 25 characters
Conflicts of Interest Disclosure

Identify all potential conflicts of interest that might be relevant to your comment.

Conflicts of interest comprise financial interests, activities, and relationships within the past 3 years including but not limited to employment, affiliation, grants or funding, consultancies, honoraria or payment, speaker's bureaus, stock ownership or options, expert testimony, royalties, donation of medical equipment, or patents planned, pending, or issued.

Err on the side of full disclosure.

If you have no conflicts of interest, check "No potential conflicts of interest" in the box below. The information will be posted with your response.

Not all submitted comments are published. Please see our commenting policy for details.

Limit 140 characters
Limit 3600 characters or approximately 600 words
    2 Comments for this article
    EXPAND ALL
    Immunity, not vaccination alone, is the relevant metric in reducing COVID19 mortality.
    David Bell, MBBS, PhD | Independent consultant
    In making a reasoned case for mandatory or incentivized COVID16 vaccination, Gostin and colleagues overlook a number of issues that may invalidate their conclusions.

    First, underlying all efforts to end the COVID19 pandemic is the importance of achieving a high level of immunity in the population. The authors conflate this with vaccination, but it is, as used in the Israeli immunity pass, immunity that matters, whether post-infection or vaccine-induced. Potentially, prior T-cell cross-immunity could be added if measurable. As it is well demonstrated that post-infection immunity is equivalent at least to that from the vaccine, there is poor
    basis to insist on vaccination in this group.

    Second, risk-benefit assessments are fundamental to public health interventions. While the article notes that children are at low risk it does not mention potential harms. Severe adverse effects, while unverified, are higher for COVID19 vaccines than those for any other disease in the VAERs data set. Association with myocarditis (as an example) is reported in Israel in up to 1 in 3000 to 6000 young males. COVID19 severity rates in children fall below these, and data show extremely low mortality rates in children without major co-morbidities (e.g. in the UK). The authors do not clarify how criteria for benefits over cost are met.

    Third, there is evidence that ending the pandemic may, at least in some geographies, not be fully dependent on further vaccination. While transmission continues and will do so in the vaccinated with greatly mitigated clinical impact, hospitalization and mortality have continued to decline rapidly in US jurisdictions where NPIs have essentially been removed. The case for mass vaccination where severe disease has become rare, in the light of current VAERs SAE reports is not clearly made.

    Lastly, the authors equate the unvaccinated population with ‘population at risk’. Population at risk is those unvaccinated and with no post-infection (or functional prior) immunity, who are at significant risk if infected (whether due to age, or co-morbidity). Unvaccinated 12 year old children, on the basis of CDC mortality data, would be at lower risk than older adults vaccinated with a 97% efficacious vaccine, whom the authors consider not to be ‘at risk’.

    The most important aspect of the pandemic response must be improving the overall outcome, not achieving a high vaccination coverage. A holistic approach to achieve this would be an appropriate public health goal.

    CONFLICT OF INTEREST: None Reported
    READ MORE
    Vaccines in EUA Status
    DV Williamson, PhD Economics |
    None of the Covid vaccines have been licensed by the FDA. They remain subject only to EUA's. No entity can require application of vaccines or therapies that have yet to be elevated from EUA status and properly licensed.
    CONFLICT OF INTEREST: None Reported
    ×