In-Depth: When could K-12 schools mandate the COVID vaccine?

Requirements unlikely before 2022, expert says
Pandemic school
Posted at 6:48 PM, Apr 14, 2021
and last updated 2021-04-18 21:45:06-04

SAN DIEGO (KGTV) -- Several universities have announced plans to require the COVID-19 vaccine for students this fall, but states are unlikely to impose vaccination mandates at K through 12 schools until at least 2022, according to a leading vaccine law expert.

States will likely wait until the Food and Drug Administration licenses the vaccines for all grade school children before implementing such a requirement, according to Dorit Reiss, a professor at UC Hastings College of Law who has published essays on the topic in the Harvard Law Review.

“If [the virus is] still around and causing extensive harm, we'll probably see mandates; not next school year but we'll probably start seeing them the year after,” she said.

A lot will hinge on clinical trials that are still underway. In March, Pfizer and Moderna started testing vaccines in children between the ages of 6 months and 11 years old. If the studies go as planned, Pfizer projects it will be on track for an emergency authorization in that group by “early 2022.”

Pfizer applied April 9 for an emergency use authorization for children aged 12 to 15 after a study showed its vaccine was highly effective in that age group. That sets up a potential regulatory decision by May, based on the three weeks it took the FDA to review Pfizer’s application last year in adults.

However, there are important differences between a vaccine with emergency authorization and one with full FDA approval. It’s not clear if states have the authority to mandate a vaccine that only has emergency authorization, she said.

“We don’t have any cases on this. It could go either way,” Reiss said.

The FDA issue full licensure for children in 2022. Pfizer projects it is on pace for full approval in adults in the “second half” of this year.

Universities like Rutgers, Brown and Cornell are preparing to move forward with vaccine mandates even if the shots still have emergency status, but there are different legal considerations at colleges than at K-12 schools, Reiss said.

At the college level, vaccine requirements are largely determined by each institution. But K-12 vaccination requirements are set by states, either through legislation or a rule issued by a state agency.

California has been requiring immunizations in grade schools since the polio vaccine in 1961. The state currently requires five vaccines for school enrollment, most recently adding the chickenpox vaccine in 2000. That vaccine became mandatory five years after it hit the market.

However, Reiss expects lawmakers will act much faster with the COVID-19 vaccines.

“COVID-19 shook our world,” she said. “I would expect, once it's licensed, states that will mandate it will move fast.”

In January, the superintendent of the Los Angeles Unified School District said he supports a COVID-19 vaccine requirement. Families would have the option for distance learning, but students who want in-person learning would be required to get the shot, “no different than students are vaccinated for measles or mumps,” said Supt. Austin Beutner.

A spokeswoman for San Diego Unified said in January that mandatory vaccination is up to the state.

Professor Reiss expects legal challenges from groups opposed to vaccination on several fronts. Groups will likely seek a religious exemption, which California currently does not allow. They also may oppose COVID-19 vaccination by arguing it is unnecessary given the low rates of severe cases among children. States will cite cases of MIS-C in children and the threat of transmission to vulnerable adults, she said.

“There's a lot of litigation about K through 12 school mandates going back to the 19th century,” she said. “And almost always, the litigation upholds the school mandates.”

Last August, a spokesperson for the California Department of Public Health told ABC 10News the agency would only consider adding the COVID-19 vaccine to the list of required immunizations for schools if it were FDA approved, there were recommendations from the CDC and the American Academy of Pediatrics, and there were sufficient supplies to ensure access for all children.

When contacted this week, the agency said it had nothing further to add at this time.