Introduction

The COVID-19 pandemic has created a host of ethical and legal questions that have left education leaders and policymakers across the nation scrambling to create policies and procedures that direct public actions. One such ethical dilemma is whether a COVID-19 vaccine should be required for in-person instruction. When The Hunt Institute first explored vaccine requirements, attention was focused on how specific institutions of higher education (IHEs) made decisions to require students to receive a COVID-19 vaccine before returning to campus. However, as more state governments have become involved in this decision-making process, some states passed laws and regulations superseding decisions of IHEs. This brief aims to provide an overview of state policies related to vaccine requirements and how they will affect both K-12 and postsecondary institutions as states and schools make plans for in-person learning during the 2021-22 academic year.

State Vaccine Legislation

Prior to the COVID-19 pandemic, all 50 states required specific immunizations, such as Hepatitis B, Measles, Mumps, and Rubella, and Whooping Cough as part of their K-12 and/or public IHE school entry requirements. While these policies differed slightly from state to state, the most significant difference was which categories of exemptions a state would allow. Although all state policies included medical exemptions, 44 (and the District of Columbia) also allowed religious exemptions for K-12 students. Further, 15 states permitted parents/guardians to refuse required immunizations for their students on philosophical grounds. The National Conference of State Legislatures has created a full map tracking state immunization exemption laws prior to the pandemic, which can be found here.

Prior to March 2020 and the COVID-19 pandemic, most state policy discussions regarding vaccination requirements were focused on eliminating philosophical and religious exemptions to increase the herd immunity of schools and communities at the K-12 level. This was because certain populations, such as newborns and individuals with compromised immune systems, cannot always be vaccinated. Herd immunity, also known as community immunity, is when a sufficient proportion of the population is immune to an infectious disease, making the spread of the disease from person to person unlikely and protecting those without the vaccine.

The COVID-19 pandemic has shifted the conversation away from exemptions and brought vaccine requirements to the forefront of public discourse. Access to COVID-19 vaccines has continued to expand, with current recommendations from the CDC encouraging individuals ages 12 and older to receive the vaccination. Scientific experts argue that a high vaccination rate across the country is necessary to move the country out of the pandemic and protect against virus variants, such as the Delta variant which is now the prominent COVID-19 strain in the United States.

As COVID-19 vaccinations became more available, education systems, governments, and private organizations began to discuss whether vaccination should be required for services. The Chronicle of Higher Education shows that more than 500 IHEs implemented COVID-19 vaccination requirements for postsecondary students prior to returning to campus for the 2021-22 school year. These requirements sparked fears of vaccine mandates and the ability to deny services to someone based on their vaccination status, which in turn prompted proactive legislative responses in many states.

COVID-19 Vaccine Requirements

Since March 2020, 16 states have passed laws that affect either K-12 and/or postsecondary institutions’ abilities to require a COVID-19 vaccine prior to returning to in-person learning. Ten states have enacted legislation prohibiting vaccination requirements, while seven states have used executive orders to regulate vaccine mandates (Note: Florida has passed both an executive order and state law regarding vaccine requirements). Most laws apply to students, faculty, and staff across both K-12 and postsecondary institutions, but two states (Oklahoma and Utah) have vaccination requirement bans that apply solely to students. One state (Arizona) applies their ban exclusively to faculty and staff. Eleven of the states prohibiting vaccination requirements only apply their bans to public entities and entities that receive state funding, and six states apply their vaccination prohibition to both public and private entities. Finally, 14 states’ prohibitions apply across the education continuum from K-12 through higher education, while one state exclusively affects K-12 schools and one state’s ban only covers IHEs.

Of the 16 states that have implemented some form of ban on vaccination requirements, there are four general approaches to the reach of these laws:

• Three states ban the requirement of any vaccine:
  • Alabama, Utah, and Wyoming
  • Example: Alabama passed a law that restricts the addition of any vaccine requirement for an institution of learning that was not already mandatory before January 2020, and bans governmental agencies or private businesses from refusing service/admission based on vaccination status.
• Ten states ban the requirement of any COVID-19 Specific Vaccine:
  • Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Missouri, Oklahoma, and Tennessee
  • Example: Oklahoma state law dictates that no public school district, or public or private postsecondary institution may require a COVID-19 vaccination as a condition of admittance or attendance.
• One state bans the requirement of any vaccine currently under FDA emergency use authorization:
  • Montana
  • Example: Montana state law prohibits all persons or government entities from refusing service based on a person’s vaccine status, but this does not apply to K-12 immunization requirements in place prior to the pandemic. The law also bans any mandatory vaccination requirement for a vaccine that lacks full FDA approval.
• Three states ban the requirement of any COVID-19 Specific Vaccine under FDA emergency use authorization:
  • South Carolina, Texas, and Utah
  • Example: Texas’ Governor Abbott signed a law stating that no entity that receives public funds shall require a consumer to provide documentation regarding the status of the consumer’s COVID-19 vaccine administered under emergency use authorization.

Using PowerBI software, The Hunt Institute has created an interactive map that allows users to toggle through the various categories mentioned above to see the types of legislation and executive orders that exist across the United States. Each state also includes a short description of the law currently in place, and The Hunt Institute will continue to update this map as further legislative bills and changes in vaccine requirements become law.

Policy Considerations

The discussion surrounding COVID-19 vaccinations and vaccination requirements in general has brought to light various considerations and policy implications that are critical to the operations of IHEs. As we continue to move through the COVID-19 pandemic and explore what the future of education might look like, there are several policy implications that educators, school leaders, and lawmakers should keep in mind.

• Currently, four state laws govern requirements of vaccines under Emergency Use Authorizations (EUA). If the COVID-19 vaccine earns full FDA approval, which both Pfizer and Moderna have applied for, then five laws will be nullified. Lawmakers and education leaders, particularly in states with laws governing EUA, should stay attuned to the FDA approval process.
• While the COVID-19 vaccines have only been approved for those ages 12 and up, it is expected that at some point, the vaccines will be recommended for those under the age of 12, as Pfizer is already testing their vaccine with this population. This may change the calculations state lawmakers use to determine whether they should ban vaccination requirements.
• Across the nation, state and federal courts are also navigating various challenges to state laws and educational requirements for vaccines. These cases have the opportunity to make significant changes in the current policies in place. Policymakers and educators should stay alert to these cases to determine how the outcomes will affect current laws. All institutions of learning should consult with their legal representation for specific guidance on current laws and court opinions.
• Historically, IHEs have been a strong tool for encouraging vaccinations as part of the requirement for enrollment. At a time when public apprehension of the COVID-19 vaccine is limiting some regions’ abilities to achieve herd immunity, banning schools from requiring the vaccine does nothing to encourage or inspire confidence in COVID-19 vaccination. Future legislation should consider the effects these COVID-19 vaccination restrictions will have on vaccination rates for other communicable diseases.
• The knowledge gained during the race to make a COVID-19 vaccine has created advancements in vaccine technology, including the use of mRNA technology. These advancements are promising for the advancement of other vaccines, but also bring with them a new host of questions around vaccine requirements. As new vaccines become available, policymakers should be aware of how laws put on the books during the COVID-19 pandemic may also govern new vaccines.
• Laws governing vaccine requirements have taken a traditional policy diffusion approach in their spread across the nation. Policy diffusion speaks to the adoption of policies or regulations by one unit of government that is influenced by another government’s action on the same topic. As seen in the map, states neighboring each other were more likely to follow each other’s lead and adopt some form of vaccine restriction. As more states consider these laws, it will be interesting to track the further spread and diffusion of these vaccine policies.