As the 2021-2022 school year commences, universities across the county are exploring ways to mitigate the spread of COVID-19 on their campuses. Given the wide availability of COVID-19 vaccines recommended by the U.S. Center for Disease Control and Prevention, including Pfizer-BioNTech, Moderna, and Johnson & Johnson, hundreds of institutions for higher education have issued policies requiring students to be fully vaccinated against COVID-19 prior to the start of the fall semester. However, these policies have increasingly faced barriers to enforcement, including lawsuits and state-specific legislation barring mandatory vaccination.
In this article, we will discuss this novel conflict as it relates to higher education and how state laws are implicated, with a focus on Ohio and the Midwest. More specifically, we will illustrate the backdrop in which the Ohio legislature and its public universities are operating by discussing the first court case to address a challenge to a university’s COVID-19 vaccination mandate, arising out of Indiana. Then, we will also identify pending or existing COVID-19 vaccination legislation in other Midwestern states – Illinois and Minnesota – as well as applicable university policies. Next, we will summarize Ohio’s recent COVID-19 vaccination legislation – House Bill 244 – as it pertains to Ohio’s public colleges and universities. Finally, we will examine the impact of the U.S. Food and Drug Administration’s (the FDA) recent approval of the Pfizer-BioNTech vaccine on House Bill 244 and the response from the Ohio State University.
Indiana. Indiana University recently issued a policy requiring all students and employees to be fully vaccinated before returning to campus in August 2021. The policy provides religious and medical exemptions, though students who qualify for these exemptions are required to participate in certain testing, quarantining, and masking measures. Further, exempt students must leave campus and return to their permanent residence if an outbreak of COVID-19 occurs. Soon after the policy was unveiled, eight students filed a motion with the Northern District of Indiana to enjoin the University from enforcing its policy. The students claimed that the policy violates their substantive due process rights under the Fourteenth Amendment. Becoming the first court to address a challenge to a university’s COVID-19 vaccination mandate, the Northern District of Indiana denied the motion. The court reasoned that the students were not actually forced to be vaccinated under the policy; they could transfer schools, take online classes, take a semester off, or vie for an exemption. In fact, nearly all but one of the plaintiffs did qualify for either the medical or religious exemptions. Thus, the students failed to show irreparable harm or an inadequate remedy at law. In regard to the one student who could not qualify for an exemption, the court maintained that her interest did not outweigh Indiana University’s legitimate aim of public health and safety for its students, faculty, and staff. In so holding, the court maintained that bodily autonomy is a constitutionally protected right, but it is not – at least in the midst of a global pandemic – a fundamental right requiring anything more than rational basis review.
In regard to state legislation, Indiana does not have any laws directly requiring or restricting COVID-19 vaccination mandates by public schools and state universities. However, Indiana Attorney General Todd Rokita has argued that the university’s policy violates House Enrolled Act (HEA) 1405, which prohibits state or local units from issuing or requiring proof of immunization status. More specifically, he argues that the university is an “arm of the state,” and therefore cannot require its students, faculty, and staff to show proof of immunization as a condition of continued attendance or employment. However, Rokita conceded that HEA 1405 prohibits public universities from requiring proof of the COVID-19 vaccine, but it does not prohibit them from requiring the vaccination itself.
Illinois. On Aug. 26, 2021, Illinois Governor J.B. Pritzker issued COVID-19 Executive Order (EO) No. 87, which is effective immediately. EO 87 is expansive. As it relates to public universities, the order requires COVID-19 vaccinations for both “higher education personnel” and “higher education students.” Under the order, covered individuals must:
- Receive at least the first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine within 10 days after issuance of the order (e., Sept. 5, 2021), and
- Be “fully vaccinated” against COVID-19 within 30 days following administration of their first dose in a two-dose vaccination series (e., Sept. 25, 2021).
Full approval by the FDA of a COVID-19 vaccine is immaterial. “[H]igher education personnel” means any person:
- Employed, contracted, or volunteering to provide services for an institution of higher education, or employed by an entity contracted to provide services for an institution of higher education, and
- In close contact — less than six feet — with other persons in the school for 15 or more minutes at least once per week on a regular basis. An “institution of higher education” is any publicly or privately operated university, college, community college, junior college, business, technical or vocational school, or other educational institution offering degrees, programs, or instruction beyond the secondary school level. And a “higher Education Student” is defined as any person enrolled in credit-bearing or non-credit-bearing coursework at an institution of higher education, either on campus or at an affiliated off-campus location.
The order does not apply to students attending remotely. Covered individuals must provide proof of COVID-19 vaccination to their applicable university. And while there are certain medical and religious exemptions, unvaccinated individuals must be excluded from university premises unless they comply with the order’s testing requirements.
While EO 87 just came into effect, it will have little effect on many Illinois universities – such as Illinois State University, University of Illinois Urbana-Champaign, and the University of Chicago – which already instituted mandatory vaccination policies at the start of the school year. A small group of students recently threatened Loyola University of Chicago with a lawsuit under the Illinois Health Care Right of Conscience Act and Illinois’ Religious Freedom Restoration Act when the university’s mandatory COVID-19 vaccine policy failed to provide religious exemptions. In response, the university accommodated the students by granting them exemptions.
Minnesota. Like Indiana, Minnesota does not have any state laws directly relating to COVID-19 vaccination mandates by public schools and state universities. However, upon the FDA’s full approval of the Pfizer COVID-19 vaccine — discussed further below — the University of Minnesota has issued a policy requiring students on its Twin Cities, Crookston, Duluth, Morris, and Rochester campuses to be fully vaccinated by any fully or emergency approved COVID-19 vaccine by Oct. 8, 2021. Though there are certain medical and religious exemptions, the vaccination requirement applies to all students, even those attending part-time and online. If a student fails to comply with the policy, a registration hold will be placed on the student’s record, preventing registration for future courses until the student complies. Regarding exemptions, students who qualify for an exemption are not required to submit regular COVID-19 testing. Further, the university’s policy does not require vaccination for faculty and staff, however, all faculty and staff must certify that they are complying with the university’s COVID-19 vaccination and testing protocols. Individuals who do not complete the process will be out of compliance with the university’s protocols, and may be subject to employment discipline.
As of the writing of this article, the university has not faced legal challenges, however, Minnesota lawmakers continue to debate the efficacy and safety of the COVID-19 vaccines.
Ohio House Bill 244. On July 14, 2021, Ohio Governor Mike DeWine signed House Bill (HB) 244. Under HB 244, public universities are barred from requiring vaccines that have not received full FDA approval. The new law goes into effect on Oct. 13, 2021, and it consists of three major provisions:
- Full FDA Approval. Under Section B(1) of HB 244, public schools and state universities shall not require students and employees to receive any COVID-19 vaccine that has not been fully approved by the FDA. At the time DeWine signed HB 244, none of the vaccines that are currently available had full FDA approval. Rather, these vaccines had been given emergency use authorization by the FDA.
- Anti-Discrimination. Under Section B(2) of HB 244, state universities are prohibited from discriminating against an individual who has not received a vaccine that has not been granted full approval by the FDA. Public universities cannot require such unvaccinated individuals to abstain from activities open to vaccinated individuals or require such unvaccinated individuals to adhere to other mitigation measures that do not equally apply to vaccinated individuals. This is true even if the university’s policy grants religious, medical, or philosophical exemptions.
- Private Institution Exemptions. Private universities are expressly exempt from HB 244 under Section B(3), as are hospitals or other healthcare facilities owned or operated by, or affiliated with, state universities. For instance, several private universities in Ohio, including Kenyon College and Ohio Wesleyan University, already have mandatory vaccination policies in place.
Importantly, the law does not affect the ability of schools and universities to request voluntary disclosure of vaccination status, or to implement one size fits all infection control measures. Equally important, HB 244 does not take effect until Oct. 13, 2021. Thus, Gov. DeWine has maintained that until that date, public colleges and universities “have every right” to require COVID-19 shots. For instance, Cleveland State University currently requires students who live on campus to be fully vaccinated.
FDA-Approval of Pfizer-BioNTech. On Aug. 23, 2021, the FDA gave its full approval of the Pfizer-BioNTech COVID-19 vaccine, which means that it meets the high standards for safety, effectiveness, and manufacturing quality the FDA requires of an approved product. How does this impact HB 244, which exclusively prohibits mandates for vaccines that do not have full FDA approval? Gov. DeWine has maintained that the vaccine’s emergency use status has contributed to vaccine hesitancy in Ohio. But with the full approval of Pfizer’s vaccine, this issue is “rendered moot.” As such, HB 244 no longer applies to the Pfizer COVID-19 vaccine.1
Ohio State University Policy. Upon FDA approval of the Pfizer COVID-19 vaccine, the Ohio State University (OSU) has become the first public university in the state to require all students and staff to get vaccinated. More specifically, OSU requires that students and staff have at least one dose of a COVID-19 vaccine by Oct. 15, and for those receiving a two-dose vaccine, both doses must be received by Nov. 15. Under the new policy, faculty must be vaccinated even if working remotely, and students who are not vaccinated by the deadline will be ineligible for on-campus living, in-person classes, and participation in certain on-campus events. However, students and staff members may qualify for certain religious or medical exemptions under the policy. Further, OSU will continue to require masks indoors for vaccinated individuals, and both indoors and outdoors for unvaccinated individuals.
As demonstrated by the recent developments in FDA approvals, Midwestern states, Ohio law, and public university policies, the relationship between COVID-19 vaccines and higher education is a complicated and evolving one. Universities — both public and private — are encouraged to stay abreast of these frequent changes in the legal landscape and seek assistance from counsel before issuing any changes to their vaccination policies on campus.
If you have any questions about state legislation and vaccination requirements, please contact a member of Taft's Higher Education group.
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1Moderna has also applied for full FDA approval of its COVID-19 vaccine. That application is still pending. If fully approved, HB 244 will no longer apply to the Moderna vaccine.