Can COVID vaccines be mandated?

News

FILE – In this Nov. 12, 2020, file photo, a University of Vermont student walks toward a tent leading to a COVID-testing site on campus in Burlington, Vt. Colleges throughout the U.S. are assuring students that this coming fall will bring a return to in-person classes, intramural sports and mostly full dormitories. But those promises come with asterisks. (AP Photo/Lisa Rathke, File)

ALBANY, N.Y. (NEWS10) — Colleges throughout the U.S. are increasingly telling students they need to get vaccinated for COVID-19 before returning to campuses in the fall. So, can colleges and universities mandate that their students get a COVID vaccine?

The answer is, “Yes.” In New York, so long as schools make reasonable accommodations for students with religious or medical exemptions or those with a disability, they can require vaccinations, according to Alicia Ouellette, Albany Law School President and Dean.

New York State laws are clear in regards to mandating a vaccine during a public health crisis. The fact that the vaccines are currently only approved for emergency use by the FDA makes no difference, Ouellette said.

Dr. Eric Yager—associate professor of microbiology and director of the pre-pharmacy program at Albany College of Pharmacy and Health Sciences—said the FDA’s language in the emergency use authorization prevents COVID vaccines from being made mandatory until they have been fully approved by the FDA.

“My understanding is that within the Act authorizing the FDA to grant emergency use authorization (EUA) is language stating that individuals have the option to accept or refuse the EUA product. Thus, vaccines cannot be made mandatory unless/until they become FDA approved,” he said.

The Food and Drug Administration (FDA) does not mandate vaccination. However, whether a state, local government or employer, for example, may require or mandate COVID-19 vaccination is a matter of state or other applicable law.

Centers for Diease Control and Prevention

The FDA echoed the above statement on mandating COVID vaccines from the Centers for Disease Control and Prevention website in an email to NEWS10 on Tuesday. They also said private colleges were within their rights to mandate students and/or staff to get vaccinated.

Cornell has already told students they will need to provide proof they were vaccinated for COVID-19 before the fall 2021 semester creating a Proof of Vaccination tool. The college said it expected a majority of its student population would be vaccinated and that they would accommodate religious or medical exemptions.

SUNY Chancellor Jim Malatras has said he would consider a mandate based on the number of students and staff already vaccinated and would make a determination over the summer.

“This has been a really long year for all of us. I’m sure you’ve experienced it. I’ve experienced it. Especially our students, they are living alone on campus, they are doing remote learning in many cases. It’s been really difficult for them. We’re ready to reopen all of our campuses. We’re excited,” Malatras told NEWS10’s sister station at the beginning of April.

“We have not crossed the bridge to say by law you must take it. Yes, well, there is a legal question as to whether or not, with what’s called an emergency authorization you can mandate, this is an emergency authorization, federal approval. There is a complicated legal question as to whether or not you can mandate a person take a vaccine that is authorized as an emergency authorization,” said Gov. Andrew Cuomo.

NEWS10 contacted the NYS Department of Health for comment Wednesday. The agency pointed to comments made by Cuomo’s acting counsel Beth Garvey which seem contradictory to the FDA’s and Ouellette’s statement. Garvey agreed with the governor.

“With an emergency use authorization as these vaccines have, there are more complicated questions especially for those in vulnerable population groups that have not been studied as part of these clinical trials but we will continue to look at it and we will continue to monitor,” she said.

This is a very complex legal matter with different interpretations of the laws surrounding mandatory COVID vaccinations. While the FDA and Ouellette said it is legal despite the current EUA status of vaccines, Gov. Cuomo, Garvey, and Dr. Yager said it is not.

NEWS10 will continue to follow this important issue.

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