ANNAPOLIS, Md. — The Maryland Attorney General's Office has weighed in on whether a state university could mandate COVID-19 vaccines for those returning to campus.
Maryland State Senator Jim Rosapepe had requested the opinion.
"USM would likely be able to successfully defend a mandate with testimony from health experts that although the vaccines are currently under an EUA, given experience with the vaccine so far and the progress of the studies, the evidence indicates that the full license will be granted in the next several months and that the USM’s decision to mandate is reasonable and necessary to control COVID-19 and prevent campus outbreaks," wrote Sandra Benson Brantley, Counsel to the General Assembly.
Brantley noted some potential legal hurdles that could pop up along the way.
"With regard to students, the Supreme Court has assumed that students have a protected property interest in continued enrollment in an institution of higher education, creating procedural and substantive due process rights, including the right to be free from arbitrary state action," Brantley writes.
In the end though, Brantley seems to think a court would rule in favor of the universities.
"I believe, however, that it is unlikely that a court would conclude that a vaccination mandate was arbitrary, given the existence of a pandemic and the consensus among public health authorities that a sufficient percentage of vaccinated individuals is necessary to achieve herd immunity and allow the lifting of current broad restrictions."
State university employees however don't have those same rights, according to Brantley.
"State and federal courts in Maryland have concluded that there is no substantive due process right to continued government employment."
Brantley adds if state universities were to require vaccines, then the American Disabilities Act would have to be considered.
"The ADA protects all employees, not just those who are disabled, from being subjected to health-related inquiries and medical examinations except under limited circumstances."
The Federal Equal Employment Opportunity Commission has oversight of such issues, but Brantley says they haven't offered much clarity.
"The EEOC has not provided any clarity as to the circumstances in which it might consider a mandatory COVID-19 vaccine job related and consistent with business necessity because of a risk of harm associated with the presence of a non-vaccinated individual in the workplace."
Another concern Brantley raises deals with religion.
Although the United States Supreme Court has ruled religion is not a Constitutionally protected objection when it comes to a vaccine, states can enact such laws.
Brantley says Maryland has. The law here is as follows.
"Unless the Secretary declares an emergency or disease epidemic, the Maryland Department of Health may not require the immunization of an individual if: (1) The individual objects to immunization because it conflicts with the individual’s bona fide religious beliefs and practices; or (2) The individual is a minor and the individual's parent or guardian objects to immunization because it conflicts with the parent or guardian's bona fide religious beliefs and practices."
Title VII of the Civil Rights Act of 1964 could also come into play.
"The federal law requires that once an employer receives notice that an employee’s “sincerely held religious belief, practice, or observance” prevents the employee from taking a vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship, more than de minimis cost to the operation of the employer’s business," wrote Brantley.
Finally there is the issue of COVID-19 vaccinations only having emergency use authorization, which is temporary and isn't held to the same standards as most vaccines.
"No court has yet considered the question of whether a COVID-19 vaccination with only temporary emergency authority may be mandated," said Brantley.
To support her opinion, Brantley cited the Supreme Court's opinion in Jacobson v. Massachusetts, where they ruled, "a vaccination to prevent the transmission of smallpox was a legitimate exercise of the State’s police powers that did not violate an individual’s liberty interest secured by the Fourteenth Amendment."
It's unclear at this point whether state universities plan on mandating vaccines for students and staff on campus.