Is It Legal To Mandate A COVID-19 Vaccine? One University Is Doing It

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Dylan Housman Chief Foreign Affairs Correspondent
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The State University of New Jersey, Rutgers, is mandating that students get vaccinated against COVID-19 in order to return to in-person instruction, despite questions from some experts about the legality of such a move.

Rutgers University announced recently that students enrolled for the fall 2021 semester must be vaccinated unless they are in fully-online programs. However, unlike with fully-approved vaccines, the law regarding a mandate for Emergency Use Authorization (EUA) vaccines is murky.

“While organizations are certainly free to encourage their employees, students, and other members to be vaccinated, federal law provides that, at least until the vaccine is licensed, individuals must have the option to accept or decline to be vaccinated,” wrote Aaron Siri, managing partner at civil litigation firm Siri & Glimstad LLP. Rutgers’ policy includes an exemption for medical and religious reasons, but otherwise all in-person students must get a shot.

Siri cited the Federal Food, Drug, and Cosmetic Act, which states that individuals must be informed “of the option to accept or refuse administration of the product” when a EUA product is administered. FDA guidance on EUA offerings uses the same language: Recipients must be informed “that they have the option to accept or refuse the EUA product.”

Executive secretary of the Centers for Disease Control and Prevention (CDC)’s Advisory Committee on Immunization Practices, Dr. Amanda Cohn, has previously said vaccines can’t be required as long as they’re only approved by EUA.

“Early in this vaccination phase, individuals will have to be consented and they won’t be able to be mandatory,” she said in August. In October, she added that organizations like hospitals could “encourage” people to get a vaccine, but “in the setting of an EUA, patients and individuals will have the right to refuse the vaccine.” (RELATED: CDC Director Who Weeped On TV About ‘Impending Doom’ Says Data Suggests ‘Vaccinated People Do Not Carry The Virus, Don’t Get Sick’)

Not everyone agrees that the vaccines can’t be required, though. Joanne Rosen, a senior lecturer and legal expert at Johns Hopkins’ Bloomberg School of Public Health, described the situation as a “novel legal issue.”

“While colleges have the legal authority to require proof of vaccination for students (and many already require that students be vaccinated against MMR and other vaccine-preventable diseases), the EUA status of the Covid-19 vaccines raises a new issue,” she told the Daily Caller. “Rutgers has stated that its Covid-19 vaccine mandate was thoroughly reviewed by its legal counsel and they are comfortable that they have the legal authority to support the vaccine requirement.”

Rosen referenced guidance from the U.S. Equal Employment Opportunity Commission released in January, which stated that employers could require proof of vaccination from employees so long as there are medical and religious exemptions in place.

It’s worth noting that Rutgers is not mandating vaccination for faculty and staff. Instead, executive vice president and chief operating officer of the university Antonio Calcado “strongly urged” those groups to get vaccinated. Rosen said there are two legal challenges currently ongoing about employer coronavirus vaccine mandates, but none regarding a mandate for students. (RELATED: Florida Gov. Ron DeSantis Threatens To Sue CDC Over Travel Restrictions)

Rosen further pointed out that at least one, if not all three, COVID-19 vaccines available in the U.S. may be fully approved by the fall and no longer under EUA. Pfizer is expected to apply for full approval from the FDA for its vaccine sometime in April. If approved, the EUA-specific regulations would no longer apply.

As the first major educational institution in the U.S. to mandate COVID-19 vaccines for students, Rutgers may set a precedent until the vaccines are fully approved.

Neither Rutgers nor the Department of Health and Human Services responded to a request for comment for this story.