Imposing vaccine mandates has been an immovable object for institutions of higher education in 20 states where bans on vaccine passports exist. Ohio State University earlier this week opted to go against the will of Gov. Mike DeWine, requiring preventive COVID-19 doses for staff, students and faculty. But OSU is the rare exception and even then, it offered some students an opt-out exemption for personal reasons. Most publicly funded universities have not even attempted to question these executive orders or legislation.
But with the U.S. Food and Drug Administration’s approval of the Pfizer/BioNTech (Comirnaty) vaccine, will those universities examine new requirements and challenge governors and their states? Would they be wise to do so?
Steve Bell, a labor and employment partner at Minnesota-based law firm Dorsey & Whitney, which has offices across the United States, says there are deeper considerations that institutions are likely weighing than simply keeping students safe during a pandemic. The bottom line is, there may be a cost to imposing them.
“[Vaccine bans] are certainly susceptible of being challenged, but if you’re a university, you have to ask, what if we’re successful? What are the long-term ramifications?” he says. “Are we just cutting off our noses to spite our face because we still rely on the state for funding? Fighting with the state isn’t the best way necessarily to endear yourself if you want to have a continued source of funding. Obviously, they’re going to fund them to some extent. But if you’re fighting with the supplier of your revenue, chances are the revenue source is going to diminish. I think that there is probably a deep reluctance to get into a tussle with the state.”
But in those places where there is a divide between the governor and legislature – whether political or based simply on a vaccine requirement’s merit – there could be opportunities to offer up a challenge, especially since one of the vaccines has graduated beyond emergency use authorization status.
“Where it gets a little more interesting is, if you have a legislature that is responsible for the purse strings for state institutions, and a governor, and they’re not on the same page,” Bell said. “Maybe [the institution says] we don’t like this. We think it exposes us to other problems. We’re going to fight that executive order and hope that the state legislature – if it’s in the hands of other people who don’t necessarily share the governor’s view – maybe you’ll take your chances.”
How the states stack up
The University of Tennessee is not one of those ready for a challenge. When asked whether it has explored the possibility of mandating the vaccine in recent days or trying to challenge the state’s ban (based on the full approval of Pfizer’s vaccine by the FDA and Ohio State’s requirement), a university spokesperson simply responded, “No.” Like most universities, UT does, however, have mandates in place for other vaccines – measles, mumps and rubella, chickenpox, tuberculosis and meningitis. It does list a number of other “optional” immunizations, including Hepatitis B, HPV, Tetanus, Inflenza and yes, COVID-19.
The spokesperson said it can’t mandate COVID-19 because: “The Tennessee General Assembly passed a bill prohibiting any state agency from mandating a person receive a COVID-19 vaccine, in most situations. We are prohibited by state law from requiring the COVID-19 vaccine, but authorized to require our students to have other common vaccines, subject to certain exemptions, pursuant to a rule promulgated under the Tennessee Uniform Administrative Procedures Act.”
And that is significant during a time when COVID-19 is spreading like wildfire, fueled by the delta variant. As of Thursday and according to its dashboard, the university system had 342 active COVID cases, a 542% increase over the past 14 days. It had 73 positive cases among employees. And it had 983 students in quarantine or isolation, a 446% increase in two weeks. Less than 42% of individuals statewide are fully vaccinated and that number plummets to 31% among 21-30-year-olds.
Tennessee has offered dozens of incentives to try to get students interested, most of which have involved attending live events such as tickets to football games and concerts, and others such as parking passes and electronics. System President Randy Boyd offered this statement to the UT community: “While we are trying to do our part to keep our campuses healthy, we continue to stress the importance of getting the COVID-19 vaccine.”
Bell says universities in those states have the power to set policy, whether outsiders deem it positive or negative.
“Does it make sense? Not to me,” he says, referring to institutions in general that don’t have the vaccine requirement. “They potentially open themselves up. We haven’t seen lawsuits yet. But I wonder whether there are going to be suits where employers and institutions have contact with the public and their staff, their professors, their teachers, and their students who haven’t been vaccinated become a source of spread. Are they going to be potentially liable? There are a lot of crazy lawsuits, but that doesn’t sound like a crazy lawsuit if you had a means of limiting transmission. You have a duty to your people who you’re interfacing with. If you breach that duty by failing to require your staff, your teachers, your professors, your students to be vaccinated, I think you can make a good argument for that.”
Tennessee isn’t the only state where there are almost no challengers. In Florida, there have been no public institutions willing to go toe-to-toe with Gov. Ron DeSantis and the legislature on his executive order banning vaccine passports. The same is largely true in Texas and Utah, although there has been plenty of resistance from their communities on the lack of requirements. UF faculty have asked their president for both vaccine and mask mandates and University of Utah students and employees have gathered nearly 1,000 signatures on a petition for vaccines.
Governors in 11 states filed executive orders to execute bans, including Alaska, Arizona, Florida, Georgia, Idaho, Montana, Oklahoma, South Carolina, South Dakota, Texas and Wyoming. Nine others – Alabama, Arkansas, Indiana, Iowa, Missouri, North Dakota, Ohio, Tennessee and Utah – have banned them through legislation. It is difficult to know whether pushback from a public institution would have merit in the eyes of courts. Some have imposed mask mandates in those states, but there is a difference between asking an individual to put on a mask vs. injecting a vaccine.
If any of them were to challenge, Bell noted: “There’s a different standard for challenging an executive order versus legislation. So it’s probably somewhat easier to overcome or defeat an executive order than it would be legislation.” But he cautions, “I don’t think you can make a blanket statement about all 50 states, because the law has developed within each of the states about what’s required to justify an executive order versus legislation.”
Higher ed might get its first test in mid-October when Ohio’s vaccine ban is set to take effect.
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