Governor's K-12 Vaccine “Mandate” Raises Questions

10.05.2021

On October 1, 2021, Governor Newsom issued a press release (the “Press Release”)^[1] and additional information^[2] indicating that COVID-19 vaccination will be required for K-12 students, effective the first January 1, or July 1, following the federal Food & Drug Administration’s (“FDA”) full approval of a COVID-19 vaccine for all students in the following grade spans: K-6 (equating to ages 5-11); and 7-12 (equating to ages 12+).^[3] The additional information published along with the Press Release indicates the vaccine requirement will also apply to K-12 school employees.

Under current law, the California Department of Public Health (“CDPH”) has authority to establish new vaccine requirements for students, which are phased in over a period of years (upon a student’s “first admission” to a particular school), and subject to medical and personal belief exemptions.

Although the exact details and timing of the Governor’s plans are not entirely clear at this time, the Press Release suggests the Governor intends not to follow the phased-in approach contained in current law, and, instead, intends to implement a statewide requirement that students be vaccinated against COVID-19, to take effect as soon as July 1, 2022, for all students in the 7-12 grade span. Yet, the Press Release does not indicate that the Governor intends to suspend current law, and, in fact, states that the CDPH will act within the confines of current law. There are significant inconsistencies in this approach.

For these reasons, in order for a statewide COVID-19 vaccine mandate for students to become effective at the same time for all students in a particular grade span, a formal Executive Order or Legislative action would likely be required. No such action has been taken at this time. LEAs are therefore advised to continue to monitor developments closely.

Current Law

Under current law, Health and Safety Code § 120325 et seq. establishes a list of 10 required vaccinations (not including the COVID-19 vaccine), which are subject only to a strict medical exemption.

Current law also states that required vaccinations must occur prior to a student’s first admission to a given school. Health and Safety Code § 120335 provides, with respect to the 10 required vaccines: “The governing authority shall not unconditionally admit any person as a pupil of any private or public elementary or secondary school, child care center, day nursery, nursery school, family day care home, or development center, unless, prior to his or her first admission to that institution, he or she has been fully immunized.”

Additionally, current law provides that CDPH can add vaccines (such as the COVID-19 vaccine) to the required list without legislative action. However, Health and Safety Code § 120338 states, in part, that vaccines not currently on the required list “may be mandated before a pupil’s first admission to any private or public elementary or secondary school, child care center, day nursery, nursery school, family day care home, or development center, only if exemptions are allowed for both medical reasons and personal beliefs.” (Emphasis added.)

Thus, current law provides:

(1) That 10 currently-mandated vaccines are required prior to a student’s “first admission” to a given school, subject only to a narrow medical exemption; and

(2) That additional vaccines (including COVID-19 vaccines) may be required by CDPH only prior to a student’s first enrollment in a school, and are subject to a broad personal belief exemption (as well as a narrow medical exemption).

Governor’s Press Release

The Press Release includes the following key points:

First, the Press Release states: “the Governor directed the California Department of Public Health (CDPH) to follow the procedures established by the Legislature to add the COVID-19 vaccine to other vaccinations required for in-person school attendance—such as measles, mumps, and rubella—pursuant to the Health and Safety Code.” This language suggests the Governor intends to abide by current requirements of the Health and Safety Code, including those which allow for personal belief exemptions when additional vaccines are required.

Second, the Press Release does not clarify what requirements become effective on the January 1, or July 1, following full FDA approval of a COVID-19 vaccine for any grade span (i.e. K-6 or 7-12). More specifically, the Governor’s Press Release states:

The requirement will take effect at the start of the term following full approval of that grade span, to be defined as January 1st or July 1st, whichever comes first. Based on current information, the requirement is expected to apply to grades 7-12 starting on July 1, 2022.

This statement seems to require that all students in the affected grade span (e.g. 7-12) be vaccinated by the first January 1, or July 1, following full FDA approval, regardless of when they are “first admitted” to a given school. This is at odds, however, with the phased approach contemplated under current law.

The Governor has authority under the Emergency Services Act to suspend legal requirements if he “determines and declares that strict compliance with any statute . . . would in any way prevent, hinder, or delay the mitigation of the effects of the emergency.” (Gov. Code § 8571). The difficulty here is that the Governor has not clearly exercised that authority, as the Press Release does not expressly suspend or override requirements of the Health and Safety Code.

Third, the Governor’s Press Release also suggests that Local Educational Agencies (“LEAs”) may be able to require the COVID-19 vaccine ahead of the Governor’s timeline:

However, local health jurisdictions and local education agencies are encouraged to implement requirements ahead of a statewide requirement based on their local circumstances.

LEAs considering adoption of a student vaccine requirement for K-12 students, in advance of the time frame outlined in the Health and Safety Code, and/or a student vaccine requirement that allows only medical but not personal belief exemptions, are encouraged to discuss the matter with their legal counsel.

Impact on Employees

The additional material published with the Press Release states:

The Governor has also directed that adults be held to at least the same standards as students for the COVID-19 vaccine. While currently, California requires all K-12 staff to verify their vaccination status or be tested weekly, all staff will be required to be vaccinated no later than when the requirement takes effect for students.

This indicates the Governor’s intent to require COVID-19 vaccination for K-12 employees, on or before the effective date of any vaccine mandate for students.

It is not yet clear whether a “personal belief” exemption will apply to employees. Moreover, independently of what the Governor may order, existing federal law requires, as a general matter, that employers must make “reasonable accommodation” for employee disabilities, and for the sincerely held religious beliefs of employees. The application of federal law to employer vaccination policies was discussed in our prior alert.

As with the requirements for K-12 students, additional clarification from the Governor (e.g. an Executive Order) would be useful.

A Further Executive Order Or Legislative Action May Be Required

Assuming the Governor’s intent is to require COVID-19 vaccination for all K-12 students and employees, and on a quicker timeline than established by current law, additional action in the form of an Executive Order or Legislative enactment will likely be required.

CONCLUSION

If you have any questions regarding this Alert or about the new vaccine requirements, you can contact the authors or your usual attorney at Atkinson, Andelson, Loya, Ruud & Romo.

[1] https://www.gov.ca.gov/2021/10/01/california-becomes-first-state-in-nation-to-announce-covid-19-vaccine-requirements-for-schools/

[2] https://www.gov.ca.gov/wp-content/uploads/2021/10/California-Becomes-First-State-in-Nation-to-Announce-COVID-19-Vaccine-to-List-of-Required-School-Vaccinations.pdf

[3] For example, if the vaccine receives full FDA approval for ages 12+ after January 1, 2022, and prior to July 1, 2022, the requirement would apply to the 7-12 grade span effective July 1, 2022.