The UC and Cal State college systems say they plan to require students and faculty to get COVID-19 vaccines before returning to campus this fall. It’s the largest such mandate in higher education, covering more than 1 million people.
But there’s a catch. The mandate from the two university systems will only come after the FDA formally approves the vaccines and supplies are sufficient. Right now, all the vaccines have been approved on an emergency-use basis.
Dorit Reiss, law professor at UC Hastings, says students will not be required to get their shots just yet because the mandate requires full FDA approval of COVID-19 vaccines.
She points out that universities requiring vaccines is not new — the UC system enacted a flu vaccine requirement in 2015. Both students and staff will be able to apply for religious or medical exemptions as well.
Private businesses can also require employees to be vaccinated. Reiss references the way restaurants require hepatitis A vaccines and health care facilities require flu vaccines.
She says the requirement becomes tricky when it involves emergency-use authorizations, like in the case of COVID-19.
“There's no court decision on this because a EUA [emergency-use authorization] vaccine for the whole population is a new thing. So we don't have any judicial guidance. And the law itself is not quite clear,” Reiss says.
Reiss says it’s also legal for employers to ask workers whether they are vaccinated, but they cannot ask the reason why they have not been vaccinated.
“Under the Americans with Disabilities Act, there's a limit to how much you can ask someone about their medical status. And the risk with that question is that it might push an employee to disclosing a disability.”
She says it’s also legal for private businesses to require customers to be vaccinated.
“Private businesses traditionally have a lot of leeway to set conditions for people to come in: no shoes, no shirt, no service. You can extend this to no vaccine, no service. It's their business. It's their private area and they can set the rules.”