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As universities, secondary, and primary schools gear up for another school year, many parents still have questions and concerns around how COVID-19 will affect their child’s education in the years to come. Specifically, many are wondering if there will be a mandate—or lack thereof—of a COVID vaccine or mask mandate for students returning for education in fall. While having a proof of immunization in order to enroll your child in school is nothing new, with the three vaccines being approved by the FDA and only authorized for ages 12 and above, the debate over whether or not the vaccine or masking could even be legally mandated has been a hot topic throughout educational communities.
To preface, this is a very complex topic that is subject to change. Throughout the past year, schools across the country have had to redevelop entire curriculum and programs in order to try and accommodate for the pandemic—even tweaking things up and until the final bell. This only grows more complicated since there is very little legal precedent established on how the courts will view a school’s response to students or families refusing the COVID vaccine.
However, while there is no established precedent, the presumption at this time is that it would be up to the schools to mandate these vaccines since they are able to do so for other such as measles and chickenpox. In New York, there is a list of “School Vaccination Requirements” that must be met in order for a child to attend a public, private, or religious school. The only exemption to these requirements would be if a child had a medical condition that prevented them from receiving the vaccine. Currently, there are “no non-medical exemptions to school vaccine requirements in New York State”, with the recent religious exemption being overruled and repealed.
In response to the concern that these rules discriminate against those who might not feel comfortable receiving or giving their child certain vaccines the option is for such families to seek other forms of education such as homeschooling or virtual learning. If a mandate were to be announced by the New York State Department of Health (DOH) for the COVID vaccine, then parents would have to choose whether or not they feel comfortable with their child receiving the COVID vaccine in order to continue their in-person schooling and, if so, then they would not have the right to refuse otherwise. While it is doubtful there will not be a formal decision made on this topic, as students are already returning to school, if it is not mandated. We may see many schools continue to offer some form of online learning to keep unvaccinated students safe. However, it is at their discretion.
While it is likely that higher education will mandate the COVID vaccine—since most college students are over 18 years old—when it comes to primary schools there may be a potential roadblock. Currently, the FDA has three fully authorized vaccines for those ages 12 and up. This means that high schools, and postsecondary education (colleges, universities, and so on) should not have any legal issue preventing them from requiring the vaccine. However, since children under 12 years old can only receive a vaccine in an emergency situation, primary schools may have to withhold from making any formal requirements if the FDA does not approve it for our younger generation. The FDA and the pharm companies are projecting a vaccine for younger children by the end of the year
As with any vaccine, the main issue is to protect children from these communicable diseases. The decision to protect children from these diseases will most likely trump any individual’s personal beliefs on whether or not they want their child to be vaccinated. This is only furthered by the concerns of a new COVID variant.
For the time being, most schools are still requiring masking mandates regardless of vaccination status, but the school districts have been under constant pressure including litigation to stop the mandate they have enacted to protect the students. Prior to August 27, 2021, the New York Department of Health only had recommendations regarding masking for students. When Governor Hochul took office, one of her first directives was for the commissioner of the New York State Department of Health to develop a mask mandate for schools.
On August 27, 2021, the NY Department of Health issued a directive regarding face coverings for COVID-19 prevention. In their release, they stated that with the recent uptick in COVID-19 cases, in public places—like schools—where social distancing might not be maintainable or which would distinguish between vaccinated and unvaccinated individuals, any person over the age of two who can medically tolerate a mask, may be required to do so. Also, the directive mentioned that the commissioner of the DOH had the right to mandate masking under the new directive, and he did so, requiring all students form Pre-K to 12th grade in public and private schools must wear masks in school. This is big since, while there has not been any formal law announced from the Governor in regards to masking, they usually follow the DOH. I do not see a Law being passed because of the fluid situation with the COVID spread. The DOH directive is in full force and effect until modified by the DOH, which will happen depending on the COVID-19 infection rate and new vaccines. This mandate also makes moot lawsuits prior to 8/27/2021 against school districts for their masking requirements. Those looking to take this issue to court would now have to directly commence litigation against the DOH.
While this mandate will be in effect for public schools, private schools including Pre-K through 12th grade and colleges will be able to police themselves when it comes to vaccinations and masking requirements, again assuming there are no formal state laws or DOH modifications yet in place. They schools would have the ability to bar students from returning to campus or going to school and would be able to enforce student penalties should their rules be violated. So, it will be of utmost importance that parents stay abreast of the state’s laws, DOH regulations, and vaccine requirements throughout the coming months, as with the further deployment of COVID vaccines there is sure to be many different guideline changes.
Michael J. Belsky, Esq. is a partner with Tully Rinckey PLLC. He provides representation in matters relating to divorce, parental alienation, separation agreements, annulments, child custody, child support, modifications to child support and child custody, enforcement of divorce decrees, spousal maintenance, pre- and post-nuptial agreements, and orders of protection and family offenses. He can be reached at (518) 218-7100 or email@example.com.