Will schools mandate COVID-19 vaccine or face liability?

As coronavirus vaccine candidates enter trials, with some of the earliest predictions landing availability sometime early next year, leaders are raising alarms around the possibility of parents and children who may seek exemptions from the requirement. 

“My fear is that we will get to that place where we have that successful vaccine, but we still have the concern from many and a mistrust,” said Sen. Lisa Murkowski (R-Alaska) during a Senate Health, Education, Labor and Pensions Committee hearing last week where legislators and health experts discussed reopening schools. “But I’m worried that we don’t have a plan for how to deal with that.” 

Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, agreed. “It is a reality,” he said during the hearing. “A lack of trust of authority, a lack of trust in government, and a concern about vaccines in general.” 

According to the National Conference of State Legislatures, while all 50 states have legislation requiring student vaccinations, 45 and the District of Columbia grant religious exemptions with some variations in implementation. In addition, 15 states allow exemptions for moral or personal beliefs. One, Minnesota, allows for nonmedical exemptions, leaving only 4 states  Maine, New York, West Virginia and California  that don’t allow for religious, personal or other nonmedical exemptions. 

The percentage of children starting kindergarten with exemptions from vaccination requirements has been slightly increasing over the past few years, according to Laura Faherty, a physician policy researcher for RAND Corp., assistant professor of pediatrics at the Boston University School of Medicine, and affiliate faculty member at Pardee RAND Graduate School.

“This trend is concerning because exemptions put children and their communities at risk of vaccine-preventable diseases, as we’ve seen with recent measles outbreaks,” Faherty said. “As we move into the fall and winter months, the last thing we want, for kids and for the healthcare system, is a surge of serious flu cases on top of the expected surges in COVID-19.” 

Dan Domenech, executive director of AASA, The School Superintendents Association, said he expects resistance to to vaccination requirements will continue in the wake of COVID-19. The majority of districts, he predicted, will mandate the COVID-19 vaccine, once available, and some will face legal challenges. 

The liability question

As the new school year approaches  with many parents, teachers and students disagreeing on key decisions such as reopening dates and safety requirements  legislators and educators are floating the idea of schools potentially being held liable. 

“There are going to be lost students and there will be cases where children, God forbid, die,” Domenech said. “If there is a death involved, that is a huge liability.” How those cases would play out, he said, is still a matter of speculation until one is tried.

The AASA is talking to Congress about including liability protections in the next round of bills. 

According to Brian Schwartz, an education lawyer who has served as general counsel for the Illinois Principals Association for 20 years, schools can minimize liability by following local, state and national mandates, especially regarding PPE and social distancing.

“Liability might exist if a school requires students and staff to attend in-person and then refuses to follow mandated safety protocols,” he said, adding a school district’s insurance carrier might refuse coverage if safety mandates are not in place or are willfully ignored.

Some states, like Tennessee, are tackling the issue on a state level. J.C. Bowman, executive director of the state’s teachers association, Professional Educators of Tennessee, called on Gov. Bill Lee in late June to pass a COVID-19 immunity bill that would protect schools from civil lawsuits related to coronavirus.

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