Virginia's public colleges have the authority to require COVID-19 vaccines among their students, Attorney General Mark Herring said Monday, the latest development in a nationwide trend in higher education toward mandating shots.
In an official opinion, Herring said colleges "may condition in-person attendance on receipt of an approved COVID-19 vaccine during this time of pandemic."
Scores of universities, both public and private, have announced they will require immunization in the fall, according to the Chronicle of Higher Education. Maryland's state university system said Friday it will require its students and staff to be vaccinated before returning for the fall semester.
Most Virginia colleges haven't followed suit yet. University spokespeople have cited federal and state laws that experts say could be used either in support or opposition of vaccine mandates.
Federal law states that when a drug is under emergency use authorization, as the three COVID-19 vaccines in use in the United States are, citizens must be given the option to accept or refuse the drug. If they refuse the drug, they must be made aware of the possible consequences. Colleges have not agreed on the meaning of the word "consequences" and whether a consequence can include barring acceptance to a university.
State law says that students at public universities must receive typical vaccines, but it doesn't address whether colleges can add other vaccines to the list. It does require students to produce a "health history consistent with guidelines adopted by each institution's board of visitors."
According to Herring, these laws do not prevent universities from requiring vaccines.
"Parents who send their children to a university have a reasonable expectation that the university will maintain a campus free of foreseeable harm," Herring wrote, citing the authority the state gives to college boards.
He added that the General Assembly has the power to pass a law requiring vaccines for in-person school attendance and that state health commissioner Dr. Norm Oliver has the authority to require immunization of all people in the case of an epidemic, as long as it is safe for the recipients. Herring also noted that the Equal Employment Opportunity Commission has suggested that employers can mandate the vaccine for their employees.
There could be complications, Herring wrote, and universities should prepare to accommodate students with health and religious exemptions. While health experts generally have recommended that everyone take the vaccine, some people with allergic reactions or compromised immune systems should speak with their doctors before taking the shot.
Herring's opinion came in response to a request by Del. Mark Keam, D-Fairfax, the chairman of the House's higher education subcommittee. Keam said earlier this month that he believes colleges have the authority to require immunizations and he supports them doing so.
Most colleges in Virginia have not taken a side yet. Virginia Tech initially said it believed it did not have the ability to require vaccines. Then a school spokesman later said the university was still considering the issue.
Private universities are not included in the opinion because the state's law on vaccines addresses only public schools. Private colleges can set their own vaccine requirements, but local private schools have been cautious so far. The University of Richmond, Virginia Union University and Randolph-Macon College said earlier this month they had not yet made decisions. At least one four-year private university in Virginia has announced a vaccine requirement - Hampton University has said it will require vaccines for students and employees by the end of May.
There have been more than 15,000 COVID cases on Virginia campuses since the start of the fall semester.