As the return to school approaches, some states are prohibiting public schools from requiring Covid-19 vaccinations or proof of vaccination for students ranging from pre-K to university.
A CNN analysis has found that at least seven states – Alabama, Arkansas, Florida, Indiana, Montana, Oklahoma and Utah – have enacted legislation this year that would restrict public schools from requiring either coronavirus vaccinations or documentation of vaccination status.
As of June 22, at least 34 states had introduced bills that would limit requiring someone to demonstrate their vaccination status or immunity against Covid-19, according to the National Conference of State Legislatures, which has been tracking legislation related to coronavirus vaccines. At least 13 states – Alabama, Arkansas, Florida, Indiana, Iowa, Kansas, Missouri, Montana, North Dakota, Oklahoma, Tennessee, Texas and Utah – have passed them into law, according to the document, and at least six of those include language pertaining specifically to schools or education.
Such moves leave public health officials worried about the limitations they could place on efforts to control the coronavirus and emerging variants – especially if a health department has vaccination recommendations for schools.
“Anytime there’s legislation that potentially prohibits the health department from trying to prevent the spread of disease, even if it’s putting limits on masks or mandates on vaccination, then it’s another step that local health departments would have to go through should there be an outbreak or a rise in cases,” Lori Tremmel Freeman, chief executive officer of the National Association of County and City Health Officials, told CNN.
“It will be concerning that this legislation is becoming more permanent,” Freeman added.
What each state’s law says
The laws take different approaches, but the result is that schools can’t require coronavirus vaccines, or in some cases, proof of vaccination. For some states, that’s the case even as schools still expect students to arrive with other recommended childhood vaccinations, including those against measles, whooping cough, polio and chickenpox.
“It seems to be kind of a mixed bag of all the things going on here – there’s the limiting of requiring proof of vaccine, there’s the limiting of requiring the vaccination itself, the prohibition of the mandates. So, there’s a lot,” Freeman said. “They’re not all uniform.”
In Alabama, Gov. Kay Ivey signed into law Senate Bill 267, which states that “institutions of education may continue to require a student to prove vaccination status as a condition of attendance only for the specific vaccines that were already required by the institution as of January 1, 2021” – which would not include coronavirus vaccines.
In Arkansas, Act 977 notes that receiving a coronavirus vaccine “shall not be a condition of education” and Florida’s new law, prohibits educational institutions from requiring students or residents provide documentation certifying vaccination against Covid-19, sometimes described as a “vaccine passport.”
Florida Gov. Ron DeSantis, who signed the law in May, argues that allowing “vaccine passports” requirements would create “two classes of citizens” based on vaccination status, his office told CNN in an email last week – and that applies in schools, too.
“Florida’s vaccine passport ban applies to schools, colleges, and universities,” Christina Pushaw, a spokesperson for the governor’s office, wrote in the email. “Floridians have the right to medical privacy, which is why Gov. DeSantis banned invasive ‘vaccine passports.’ No COVID-19 vaccine is required by law.”
In Indiana, House Enrolled Act 1405 was signed by Gov. Eric J. Holcomb in late April; it notes that “the state or a local unit may not issue or require an immunization passport,” meaning a documentation of someone’s vaccination status – and therefore, a vaccine requirement would be based on an honor system.
Indiana Attorney General Todd Rokita told CNN last week the law applies to public universities as an arm of the state, but there haven’t been discussions yet about whether the law applies to local public school districts in Indiana. What’s clear, he said, is that the law “OKs a requirement. What it prohibits is proof – so what was specifically prohibited was the vaccine passport.”
In Montana, the law signed by Gov. Greg Gianforte in May calls it “an unlawful discriminatory practice” to “refuse, withhold from, or deny” educational opportunities based on a person’s vaccination status.
In Oklahoma, Senate Bill 658, signed into law in June, prohibits a public school district’s board of education from requiring vaccination against Covid-19 as a condition of admittance to or attendance.
And in Utah, House Bill 308, signed by Gov. Spencer J. Cox in March, “prohibits a governmental entity from requiring that an individual receive a vaccine for COVID-19”; the state legislature includes public school districts as political subdivisions of the state and public colleges and universities as governmental entities.
‘Why would we want to take any legal public health tools off the table?’
Even though the laws aren’t uniform, there’s concern among some public health officials that prohibiting certain vaccine requirements could impact public opinions around both coronavirus vaccines and long-standing school vaccine requirements, said Brent Ewig, a policy consultant for the Association of Immunization Managers.
It’s not clear whether Covid-19 vaccine mandates would help vaccine uptake or create backlash, Ewig said.
“I do think there are a couple of questions that can help guide this debate in the future – and the first is that with more than 600,000 Americans dead, why would we want to take any legal public health tools off the table until we know what it will take to stop this?”
There is also concern about public safety and what such legislation could mean for the whole of public health.
For instance, some health officials worry that a coronavirus variant could emerge that might be more transmissible or dangerous, or that might directly impact children. Prohibiting vaccine mandates in schools could make it more difficult to implement measures that would help control the virus and prevent another pandemic.
Meanwhile, “we do see a couple of states that, even at the same time they are trying to prohibit some of these mandates, they are adding provisional language to not apply to school immunization requirements,” Freeman said. “They’re trying to walk the line there a little bit.”
One example is Louisiana, where in July, Gov. John Bel Edwards vetoed a bill that prohibited some requirements for vaccination because, according to his office, it would “change Louisiana’s approach to vaccine requirements for schools and educational facilities, which has been in place for decades without significant controversy.”
In new Covid-19 schools guidance released on Friday, the US Centers for Disease Control and Prevention does not address vaccine mandates, but notes that keeping track of students’ and workers’ Covid-19 vaccination status can help inform the prevention strategies used in a school, such as mask-wearing and physical distancing.
The CDC also says its guidance does not replace local guidance and policies.
However, the CDC urges schools take steps to promote Covid-19 vaccination, including offering vaccines on site, providing paid sick leave for employees to get vaccinated and excusing absences for students to get vaccinated.
Coronavirus vaccines are available only for people 12 and older, but vaccines for younger children are being studied.
“Vaccination is currently the leading public health prevention strategy to end the COVID-19 pandemic,” the guidance says. “Promoting vaccination can help schools safely return to in-person learning as well as extracurricular activities and sports.”
So far, most of the discussions around prohibiting vaccine mandates in schools have been in the context of college or university campuses.
In April, the American College Health Association issued a policy statement recommending Covid-19 vaccination requirements for all on-campus college and university students for the upcoming fall semester, where state law and resources allow.
Ewig said the focus has been more intense on the university level because vaccines were available earlier for people 18 and older earlier, and because of the risk of Covid-19 transmission in university living situations.
“I think the other issue is because it is still under emergency use authorization has created some hesitancy about going too far on this debate about mandating,” he said. “My sense is that there are a lot of people that are waiting on the timing of that from when it goes from FDA emergency use authorization to full licensure, which I think we expect sometime in the fall.”
Could FDA approval shift the mandate debate?
There are three coronavirus vaccines that the US Food and Drug Administration has authorized for emergency use in the United States: the Pfizer/BioNTech for ages 12 and older, and Moderna and Johnson & Johnson for ages 18 and older.
Pfizer/BioNTech and Moderna have begun their applications to receive full FDA approval, and Johnson & Johnson has said it intends to file for licensure.
Once the coronavirus vaccines have received full approval under the FDA, that could change things, said Freeman of the National Association of County and City Health Officials.
“Authorization, that is not the same thing as a full approval,” Freeman said. “And so that would have to change first before any permanent recommendations were made about the child immunization requirements.”
But while full FDA approval could have an effect at the federal level or in private situations, it would not make a difference under the state law in Indiana, Attorney General Rokita told CNN.
“I don’t think this issue is going away,” Rokita said. “I don’t think it’s a matter too much of emergency use or not, because at the end of the day, this should be about people’s right to make health care decisions that best suit their families, their personal medical circumstances, and even their religious beliefs.”
Dr. Anthony Fauci, chief medical adviser to President Joe Biden, thinks some of the hesitancy around issuing Covid-19 vaccine requirements is because the vaccines are still under emergency use authorization, he told CNN’s Jake Tapper on “State of the Union” on Sunday.
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“But people need to understand that the amount of data right now that shows a high degree of effectiveness and a high degree of safety is more than we’ve ever seen with emergency use authorization. So these vaccines are as good as officially approved, with all the I’s dotted and the Ts crossed. It hasn’t been done yet because the FDA has to do certain things, but it’s as good as done,” Fauci said.
Asked by Tapper if it’s “generally a good idea for business or schools to require vaccination,” Fauci replied there should be more mandates.
“There really should be. We’re talking about life and death situation,” Fauci said. “We’ve lost 600,000 Americans already, and we’re still losing more people. There’ve been 4 million deaths worldwide. This is serious business.”