Dorit Rubinstein Reiss, a professor at the University of California Hastings College of the Law who studies laws related to vaccines, said she believes Rutgers is on solid ground in requiring a COVID-19 vaccine. But she noted two caveats.
“The wrinkle right now is right now the vaccines are still under EUA, and the other wrinkle is access. But they’re not requiring it tomorrow; they’re requiring it for the fall,” Reiss said.
She added that there is at least a chance one or more vaccines will be fully approved by the FDA by the fall.
“And even if not, although there's not legal certainty, universities have a plausible argument that it’s legal to mandate a vaccine under an EUA,” Reiss said.
Tony Yang, a professor of health policy and management at George Washington University, in Washington, D.C., said it would be helpful for the federal government “to provide some kind of clear guidance on this particular issue. The federal government should clarify EUA versus full approval does not matter for mandating vaccinations,” he said.
In any case, Yang agrees with Reiss that Rutgers is likely on solid legal ground.
“I think they’re comfortable with the legal authority supporting this policy, and I think they are totally right,” Yang said. “Colleges and universities do routinely require vaccines, such as MMR [measles, mumps and rubella], chickenpox. I don’t see why the COVID-19 vaccine would not be put within the same category. Under the existing federal statutes and case law, colleges and universities have a broad discretion to require vaccination as a condition of a full return to campus.”
Peter Lake, the Charles A. Dana Chair and director of the Center for Excellence in Higher Education Law and Policy at Stetson University in Florida, said colleges will have to recognize potential exemptions.
"Obviously, there’s disability law that’s applicable. Public schools may have some issues with religious exemptions. But broadly speaking, unless there’s a major change in precedent, it’s not unheard-of to have required vaccinations," he said.
"I think we’re likely to see that persist," he continued. "I think the harder thing is what kind of penalties are imposed. That's going to be tricky, especially with open campus life. We have controlled access with a lot of K-12, but with open campuses, that is much trickier to police the boundaries of that."https://www.insidehighered.com/news/2021/03/26/rutgers-will-require-covid-vaccine-students-fall