After over a year, it appears there is finally light at the end of the COVID-19 tunnel. With over 85 million Americans fully vaccinated and millions more being vaccinated each month, a semblance of normalcy is slowly beginning to return. As a result, colleges and universities are forming plans for students to safely return to campus for something resembling a normal school year in the fall of 2021. Key for many institutions is a requirement that returning students be fully vaccinated for COVID-19. Georgetown University, Brown University, and the University of Notre Dame, just to name a few, have all created COVID-19 vaccination requirements for students returning to campus.
It is well-established law that states may mandate certain immunizations during a public health crisis, if the mandate is not discriminatory. However, there are currently no state laws mandating COVID-19 vaccines for school-age children or college students. As a result, there is an open door for students and potentially the parents of students to bring individual or class action claims against colleges and universities with COVID-19 vaccination requirements.
There are defenses available to potentially defend against these claims. Initially, a college or university may argue that it has the right to impose a vaccination requirement on its students. The University of California recently prevailed after it was sued for implementing a flu vaccination requirement. It is unclear, however, if this precedent will carry over to COVID-19 vaccines.
To defend against class certification, a college or university may argue that the case should not be certified as a class action because individual questions of law or fact predominate over questions common to the class. In other words, numerous “mini trials” may be necessary to evaluate each proposed class member’s grounds for claiming that a COVID-19 vaccination requirement is discriminatory as to him or her. Additionally, a college or university may argue that the proposed class is not sufficiently numerous. Typically, at least twenty plaintiffs or more are needed to form a class action.
Importantly, however, these defenses may ultimately be all for naught. While some states, including Maryland and Massachusetts, now require students to be vaccinated for COVID-19 to return to campus, other states, including Texas and Florida, banned state colleges and universities from requiring COVID-19 vaccines. Other states may follow in Florida’s and Texas’s footsteps. Therefore, a college or university should consult with experienced legal counsel on potential class action and other legal exposure before implementing a COVID-19 vaccine requirement.