Will other NC universities follow Duke in requiring COVID vaccines? It’s a tricky issue.

Some North Carolina college students might have to pack their COVID-19 vaccination cards when they return to campus next fall, as universities consider whether to require vaccines for students and employees.

Mandatory vaccinations could mean a faster return to normal for campuses, but it’s a complicated issue.

Though vaccines have proven to be a safe and effective tool in reducing transmission and illness, there’s legal uncertainty about the fact that vaccines are listed as emergency-use authorization, or EUA, experts say.

What Duke is doing

Locally, Duke University has announced that students must get a COVID-19 vaccine before the fall semester. Duke already requires students to show proof of several other vaccinations and immunizations before they can start classes on campus.

Duke President Vincent Price said “widespread vaccination will be the only way to facilitate a return to normal and robust campus life.”

More than a dozen other public and private universities around the country are also requiring COVID-19 vaccines for next fall, including Rutgers, Notre Dame, Cornell and Northeastern.

But others, including Virginia Tech, say they can’t legally do that without full FDA approval of vaccines or that they want to leave it up to students, The Associated Press reported.

UNC System urging but not requiring

The UNC System, which governs North Carolina’s 16 public universities, has not announced a COVID-19 vaccine mandate for students or employees. In a statement, the UNC System said it is urging students to get vaccinated as soon as they can, but is not requiring it. System leaders are relying on direction from federal and state public health officials and state law.

UNC-Chapel Hill has been considering the option and the legal issues, with guidance from the UNC System. UNC-CH Chancellor Kevin Guskiewicz addressed questions about a vaccine requirement at a meeting with student, faculty and community leaders last week.

Guskiewicz said they are having regular conversations with UNC-CH infectious disease and public health experts who said it would be “premature” to institute a COVID-19 vaccine mandate.

He also said it’s likely that the Chapel Hill campus community will reach herd immunity before the fall semester. Combined with mask-wearing and other safety precautions, there will be little risk at that point, Guskiewicz said.

The university is using data and information about how many people are already vaccinated to help guide decisions about requiring vaccines for people to return to work or live and take classes on campus. In North Carolina, everyone 16 and up can get vaccinated, and 40% of adults have received at least one dose.

“The state and national conversation around this topic is very fluid right now, and it is unclear if a vaccine mandate would be feasible or necessary,” UNC-CH Director Of Media Relations Joanne Peters-Denny said in an emailed statement.

“Right now, our primary focus is encouraging everyone on our campus to get vaccinated as soon as possible, and we are doing everything we can to help our campus community achieve that, including opening up the Carolina Student Vaccination Clinic on campus.”

Several other universities in the UNC System, including N.C. State, are also running COVID-19 vaccine clinics on campus and have administered more than 62,500 vaccinations.

Isaiah Green, president of the UNC System’s Association of Student Governments, said he’s heard both excitement and concerns from students about the possibility of a vaccine mandate. He said some students see it as a way to get back the “full college experience” with in-person classes, events on campus, sports and clubs. Others, particularly Black students, have real concerns about the safety of the vaccines and access to them, he said.

Legal uncertainty of vaccine mandate

Public and private universities already require students to get certain vaccines and have for nearly a century. But the wrinkle for COVID-19 vaccines is that they are authorized for emergency use and not FDA-approved, according to Dorit Reiss, a professor of law at the University of California Hastings College of the Law. She specializes in vaccine law and policy.

The emergency use authorization statute for the Pfizer, Moderna and Johnson & Johnson vaccines says people must be told they can accept or refuse the vaccine. But the statute refers to the Secretary of Health and Human Services and doesn’t specifically mention colleges and universities, which creates uncertainty, Reiss said.

Universities requiring vaccines could expect some legal challenges with backing from the anti-vaccine movement, Reiss said.

“There have been lawsuits against universities in the past over vaccine mandates,” Reiss said. “Most of the time people suing the university lose.”

Colleges that do require COVID-19 vaccines need to make accommodations for students with medical exemptions and should also consider sincere religious exemptions, Reiss said.

North Carolina state law already requires college students to get several vaccines, and schools can add more to their own lists.

It’s possible that one or all of these vaccines could get full FDA-approval in the next few months, which would mean the COVID vaccine is exactly the same as other mandated vaccines.

If the state can mandate measles and mumps vaccines, then why not a COVID vaccine, public health lawyer and UNC-CH professor Jill Moore said. But the administrative process to add it to the state’s list could take up to 18 months and require public and legislative oversight, she said.

“[Schools] seem to be either putting faith in the idea that we’ll have full licensure or assuming they can require it, even though they’re under EUA,” Moore said.

Can universities require employees to get vaccinated?

While Duke is requiring COVID-19 vaccines for students, it has not yet made a decision about employees.

Any public or private employer may require employees to be vaccinated against COVID-19, according to the North Carolina Department of Labor. Employers also are allowed to incentivize employees to get the COVID-19 vaccine.

UNC School of Government professor Diane Juffras, who specializes in employer-employee relations and employment law, said the emergency use authorization rules are open to differing interpretations and there is no case law on the issue.

Jaffras said some attorneys and public health experts say the federal government can’t require citizens to get a vaccine that has only emergency use authorization. But it doesn’t prohibit state and local governments or private organizations from requiring vaccination as a condition of employment, entry into a physical space or participation in activities, she said.

Jaffras also noted that the Equal Employment Opportunity Commission says that employers may require vaccination against COVID-19 as long they accommodate employees with disabilities and religious objections to vaccination.

Without clear precedent or guidance, universities will have to weigh whether or not they’ll make students, professors and university staff to carry vaccine passports to prove they’ve been vaccinated.