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A legal debate is swirling about whether colleges can require COVID shots
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A legal debate is swirling about whether colleges can require COVID shots

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A health care worker administered a COVID-19 vaccine at Richmond Raceway on Jan. 19.

Some universities across the country say they will require students to be vaccinated against COVID-19 before they arrive on campus for the fall semester. It’s unclear if federal laws grant them that authority, and so far Virginia universities are taking a cautious approach.

At least 13 colleges have said they will require vaccines in the fall, including private schools Duke, Notre Dame and Cornell and public universities like Rutgers. But two universities in Virginia say they don’t believe the law allows them to mandate vaccines, even as more than 15,000 cases have occurred on Virginia campuses in the past year and colleges scramble to resume in-person activity in the fall.

Del. Mark Keam, D-Fairfax, the chair of the House’s higher education subcommittee, says universities need to be given that authority to keep their communities safe.

“As a policymaker and as the parent of two college kids, I think it’s important that schools are open with all the community on campus being vaccinated,” he said.

Lisa M. Lee, a professor of public health at Virginia Tech, says mandating vaccines at universities is the ethical thing to do.

“I think the recent rise in cases among young people suggest it might be the right thing to do to mandate them, ethically and from a public health perspective,” Lee said.

Students at two Winston-Salem universities will take part in a new study that tracks the spread of COVID-19 among vaccinated persons.

The question is, does the law allow it?

Federal law requires that when a drug is under emergency use authorization, citizens must be given the option to accept or refuse the drug and be made aware of the possible consequences of refusing it. That terminology is unclear, Lee said. Legal experts disagree about the word “consequences” and whether those consequences can include being denied admission to a university.

Given that some schools have jumped the gun, it’s probable that someone will file a lawsuit, putting the question in the hands of a judge, Lee said.

So far, two Virginia colleges have said they don’t believe they have the authority to require immunization. Virginia Tech said in a statement last month that it cannot require students to take the shot, but spokesman Mark Owczarski said Monday that the university is still considering the issue.

“No decision about requiring a vaccine or not has been made, but we continue to follow and discuss the issue,” he said.

A spokeswoman at the College of William & Mary said the university does not believe it has the authority to require shots.

The Centers for Disease Control and Prevention has given its own guidance, saying that whether state, local governments or employers require vaccination is a matter of state or other applicable law. But Virginia law isn’t terribly clear on the issue, either.

Virginia law requires students at public universities to receive vaccines for diphtheria, tetanus, poliomyelitis, measles, mumps and rubella. It does not address whether universities can add their own mandates, leaving some gray area. But it does require students to furnish a “health history consistent with guidelines adopted by each institution’s board of visitors.”

The law could be read either way, to support or oppose vaccination mandates, said Carl Tobias, a University of Richmond law professor.

Keam questioned why emergency-use authorization isn’t enough for universities to mandate vaccines. If government agencies are telling people the shots are safe and effective, why should universities need an extra stamp of approval?

Originally, drugs were given emergency-use authorization because health experts didn’t know if the drug was effective, but trying it and taking a risk were better than nothing, Lee said.

In the case of the three COVID-19 vaccines tentatively approved in the U.S. — Pfizer, Moderna and Johnson & Johnson — the vaccines have proved safe and effective, and the companies likely will apply soon for full authorization, Lee added.

But Lee cautioned that no organization can mandate vaccine administration until enough supply is available, a point the country has not reached yet.

Keam urged Gov. Ralph Northam to take action, if necessary. A spokeswoman in the governor’s office did not immediately respond to a request for comment.

Most governors in the country have a good deal of power to protect public health and, in Virginia, courts have generally allowed Northam’s orders to remain in effect, Tobias said. Northam could consult the General Assembly about how to proceed and could suggest legislation, though there may not be enough time for that before the fall semester begins.

The Office of the Attorney General is still reviewing the matter, Keam said. A spokeswoman in the attorney general’s office did not respond to an email Monday.

According to one survey by Maguire Associates, most prospective college students would enroll at a university that requires COVID-19 vaccines. The survey reports that 85% of students would enroll and 79% of parents would send their student to a school that mandates immunizations.

But some states are already blocking their universities from doing so, Inside Higher Ed reports. Texas Gov. Greg Abbott signed an executive order that prevents universities that receive state funds from requiring the vaccine. Florida Gov. Ron DeSantis signed an executive order that made it illegal for businesses to require vaccines, and Utah Gov. Spencer Cox has signed a law that stops public colleges from mandating the shot.

Two private schools in the Richmond area, the University of Richmond and Randolph-Macon College, said they have not come to a conclusion on vaccine requirements. A spokeswoman from Virginia Union University and a spokesman for Virginia Commonwealth University did not immediately respond to a request for comment.

Virginia law typically allows unvaccinated students to apply for a waiver under religious claims, but those exemptions are superseded in the event of a health emergency. Students can ask for health exemptions to enroll in school without a needed vaccine.

While officials have generally recommended that all adults take the vaccine, they have recommended that people with certain allergic reactions or people with compromised immune systems discuss the vaccine with their primary care provider first.

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Eric Kolenich writes about higher education, sports, coronavirus and protests for the Richmond Times-Dispatch. He joined the newspaper in 2009 after graduating from the University of Virginia with a degree in English. (804) 649-6109

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