Can the State of New Jersey Require School Employees to Get COVID-19 Vaccines?

The January 2021 “Legal Corner” concluded that New Jersey employers most likely had the authority to require their employees to receive COVID-19 vaccines. At that time, we were anxiously awaiting the United States Food and Drug Administration (FDA) to issue Emergency Use Authorizations (EUAs) for three different vaccines–commonly referred to as the Pfizer, Moderna and Johnson & Johnson vaccines. The EUAs for all three have been issued and many Americans have received the named vaccines.

Unfortunately, the United States and New Jersey continue to be gripped by the spread of COVID-19 and more recently the “Delta” variant. On August 23, 2021, the FDA granted full approval for the use of the Pfizer vaccine for people 16 and older. Moderna’s and Johnson & Johnson’s applications for full approval of their vaccines are still pending. The Pfizer vaccine also continues to be available under EUA, for individuals 12- through 15-years-of-age, as well as, for the administration of a third dose for certain immunocompromised individuals.

On August 23, 2021, Governor Murphy issued Executive Order No. 253 (EO)[1] instituting a vaccination or testing requirement for all preschool to grade-12 personnel. Simply put, the EO requires all preschool to grade 12 school personnel to be fully vaccinated against COVID-19 by October 18, 2021, or to be subject to COVID-19 testing at a minimum of one-to-two times per week. The mandate applies to all individuals (full- and part-time) employed in preschool to grade 12 settings. More specifically, the EO applies to:

• All individuals employed by a preschool to grade 12 setting (full- and part-time) including, but not limited to, administrators, teachers, educational support professionals, individuals providing food, custodial, and administrative support services;
• Substitute teachers, whether employed directly by a preschool to grade 12 setting, or otherwise contracted; and,
• Contractors, providers, and any other individuals performing work (including volunteers) in preschool to grade 12 settings whose duties require them to make regular visits to such schools. 

Individuals who visit schools to provide one-time or limited-duration repairs, services, or construction are not required to be vaccinated under the EO. School personnel will be considered “fully vaccinated” for COVID-19 two weeks or more after they have received the second dose in a two-dose series, or two weeks or more after they have received a single-dose vaccine. For the vaccines to qualify, they must have FDA EUA approval or full FDA approval. If school staff members, as specified above, have an unknown vaccination status, or have not provided sufficient proof of vaccination, they are deemed unvaccinated. Individuals who fail to follow properly issued executive orders are subject to penalties. These can vary from being charged with a disorderly persons offense to being charged with cruelty and neglect of children.

There have been some recent legal challenges to COVID vaccine mandates. In Klaassen v. The Trustees of Indiana University,[2]  Indiana University students challenged the university’s COVID-19 vaccine mandate in federal court claiming it was unconstitutional and sought a preliminary injunction. The challenged policy included requirements for masking, testing, and social distancing for students who met the vaccine exemption requirements. The federal district court denied the students’ application.  In its denial, the district court recognized the students’ significant liberty interest in refusing unwanted medical treatment but disagreed with the students’ view that their liberty interest against being vaccinated was a fundamental right requiring the court to apply strict scrutiny in its decision. The court disagreed and applied the rational basis test meaning that, legislation (vaccination requirement) is presumed valid and will be sustained if the classification is rationally related to a legitimate state interest. Referencing Jacobson v. Commonwealth of Massachusetts,[3]and its progeny, the court was convinced that the public interest in protecting the health and safety of the university population was rationally related to the vaccine mandate. The students could not establish a likelihood of success on the merits, and the court denied the preliminary injunction application.[4]

In reaching its determination, the court addressed the COVID-19 vaccination EUA status[5] and emphasized that not all EUAs are created equal. Due to the widespread use of COVID-19 vaccines, the FDA informed the manufacturers that it expected the same level of endpoint efficacy data as required for full approval.[6] The court also took the FDA’s approach to the EUAs into account in denying the students’ request for a preliminary injunction.[7] The students’ appealed the district court’s decision and filed a motion for a preliminary injunction pending the appeal which was denied by the Seventh Circuit Court of Appeals.

Significantly, on July 6, 2021, the United States Department of Justice, Office of Legal Counsel issued an opinion concluding that Section 564 of the Food, Drug, and Cosmetic Act, 21 U.S.C.§360bbb-3 does not prohibit public entities from imposing vaccination requirements for vaccines that are under an EUA.[8]  In addition, on May 28, 2021, the United States Equal Opportunity Employment Commission updated its guidance concerning COVID vaccinations,[9] and continues to advise that federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the Americans with Disabilities Act (ADA) and other EEO considerations.[10]  These principles apply if an employee gets the vaccine in the community or from the employer. Under some circumstances, Title VII and the ADA will require an employer to provide a reasonable accommodation for an employee who does not get vaccinated due to a disability or sincerely held religious belief, practice, or observance, provided that the accommodation does not impose an undue hardship on the operation of the employer’s business. Examples of such reasonable accommodations might be requiring an unvaccinated employee to wear a mask, work at a social distance from others, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or even accept a reassignment.

Recently, Bridges v. Houston Methodist Hospital, [11] examined the legality of an employee mandate. On April 1, 2021, the Houston Methodist Hospital implemented a policy requiring employees to be vaccinated before June 7, 2021, at the hospital’s expense, or be terminated. The plaintiff, Jennifer Bridges, and 116 other employees sued to block the requirement arguing that the hospital policy was unlawful. Specifically, Bridges claimed that the vaccines are experimental and dangerous. Bridges also asserted that she and her colleagues were wrongfully terminated.[12]

The federal district court concluded that, under Texas law, if an employee refuses an assignment, changed office, earlier start time, or other directive, the employee may be terminated. The court reasoned that the United States Secretary of Health and Human Services is authorized to introduce medical products into interstate commerce intended for emergency use.  The Secretary must ensure that product recipients understand the potential benefits and risks.  The recipient must also have the right to refuse the product.  However, EUA provisions neither expand nor restrict the responsibilities of private employers. The court rejected Bridge’s argument that the hospital’s vaccine requirement was forcing employees to be “human subjects.”  Bridge’s more unusual claim that the vaccine requirement violated the “Nuremburg Code” likening the vaccine requirement to forced medical experimentation in the concentrations camps was also resoundingly declined. The court specifically noted that the attempted equivalency was “reprehensible.”[13] The court explained that Bridges was not being forced to do anything. The hospital adopted this policy because it is in the business of saving lives, thereby choosing to keep patients and staff safe. If an employee chooses not to follow the policy, the employee can simply work elsewhere.[14] Of course, now with final approval of the Pfizer vaccine obtained, and other final approvals pending, many of the arguments recently extended to defeat vaccine requirements have only been weakened.

Although legal challenges to the recent EO requiring vaccines for school staff may surface, it appears that the EO is on firm ground.  If issues arise concerning vaccine requirements in your district, it is best to consult the board attorney.

[1] https://nj.gov/infobank/eo/056murphy/pdf/EO-253.pdf.

[2] 2021 WL 3073926 (N.D. Ind. 2021), motion for preliminary injunction pending appeal denied, 7 F.4^th 592 (7^th Cir. 2021).

[3] 197 U.S. 11 (1905).

[4] 2021 WL 3073926 at 38.

[5] The emergency use authorization process was originally authorized by Congress in response to an issue flagged by the George W. Bush administration to protect Americans in the event of a biological, chemical, radiological, or nuclear agent, and diseases caused by such agents, in the event there was not yet an approved countermeasure. See Memorandum Opinion for the Deputy Counsel to the President, “Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an Emergency Use Authorization” (July 16, 2021) at 3.

[6] Klaassen, 2021 WL 3073926 at 8.

[7] Id. at 46.

[8] https://www.justice.gov/olc/file/1415446/download.

[9] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

[10] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#K.5.

[11] 2021 WL 2399994 (S.D. Tex. 2021).

[12] Id. at 2.

[13] Id.

[14] Id.