Our friends at CECU sent out the following memo on August 19:
CECU: Recent Developments Regarding Vaccine Mandates at Institutions of Higher Education
In recent months, many institutions of higher education have mandated that all students and employees be vaccinated before returning to campus. We write to share recent updates regarding legal developments associated with vaccine mandates. CECU does not have a position on mandatory vaccination requirements. This email is not legal advice and institutions should consult with counsel before making any decisions regarding vaccination mandates.
Department of Justice Guidance
The Food and Drug Administration (FDA) has approved three COVID-19 vaccinations under its emergency use authorization procedures (Pfizer-BioNTech, Moderna, Johnson & Johnson Janssen). To date, none of the vaccines have received full approval by the FDA. Many employers and institutions have wondered whether they are legally permitted to mandate vaccinations that have not received full approval by the FDA.
In July, the U.S. Department of Justice (DOJ) published a memorandum taking the position that the Food, Drug, and Cosmetic Act – the statute that allows the FDA to approve vaccinations for emergency use authorization – does not prohibit entities from requiring vaccines that have only been approved for emergency use.
In May, the Equal Employment Opportunity Commission published guidance stating that “Federal [equal employment opportunity] laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.”
The guidance also clarified that employers may offer incentives for employees to become vaccinated so long as those incentives are not coercive.
Recent Federal Court Rulings on Challenges to Vaccine Mandates
In June, the U.S. District Court for the Southern District of Texas dismissed a lawsuit brought by employees challenging their hospital-employer’s vaccine mandate. Bridges v. Houston Methodist Hosp., 2021 U.S. Dist. LEXIS 110382, 7-8 (S.D. Tex. June 12, 2021) (finding that federal law does not provide for a cause of action against an employer for imposing a vaccine mandate). This case is currently pending before the U.S. Court of Appeals for the Fifth Circuit.
On August 12, 2021, the Supreme Court denied an application from a group of students for an injunction against Indian University’s vaccine mandate. The U.S. Court of Appeals for the Seventh Circuit had previously denied the injunction request brought by the students, citing case law from 1905 that held that states can impose mandatory vaccination requirements. Klaassen v. Trs. of Ind. Univ., 2021 U.S. App. LEXIS 22785 (7th Cir. August 2, 2021) (citing Jacobson v. Massachusetts, 197 U.S. 11 (1905), which held “that a state may require all members of the public to be vaccinated against smallpox.”)
Several states have passed laws to address vaccination issues. These laws include bans on employment vaccination requirements, vaccine passports, and discrimination based on vaccination status. There have been various lawsuits brought against some of these state laws. Institutions that reside in a state in which such a law exists should consult with counsel about the statute’s impact on its operations.
The National Academy for State Health Policy has published a website tracking these state laws, which can be accessed here.
CECU does not have a position on mandatory vaccination requirements. We provide this email as a courtesy to members that may be considering such actions. This email is not legal advice and institutions should consult with counsel before making any decisions regarding vaccination mandates.
For government relations questions, please contact Steve Gonzalez, Senior Vice President of Government Relations, at Steve.Gonzalez@career.org or John Huston, Vice President of Government Relations, at John.Huston@career.org. If you have questions about regulatory matters, please contact Nicholas Kent, Senior Vice President of Policy and Regulatory Affairs, at Nicholas.Kent@career.org. View CECU’s GR Update Archives to review previous updates.
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