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Legal Updates

Immunizations And Communicable Diseases: What Independent Schools Need To Know

In the wake of the recent measles outbreaks, many independent schools and other educational institutions are finding themselves on the frontline of discussions about immunization policies and best practices. In particular, schools are grappling with how best to prepare for and respond to vaccine-preventable disease outbreaks impacting their communities.

Schools play a unique role in this area, both because they are legally required to collect and maintain immunization records for students and because they serve children – a vulnerable group of our population. Thus, it is essential that schools understand their legal obligations as well as their rights to act in the interest of protecting their communities.

Current Crisis

The Centers for Disease and Control and Prevention (the “CDC”) recently reported that between January 1 and May 10, 2019, there were 839 confirmed measles cases in the U.S. Only five months into the year, this is already the highest annual number of reported measles cases in the U.S. in over 25 years.
The number of confirmed cases has been particularly startling for health officials since the CDC considered measles to have been eradicated in the U.S. as of 2000. The CDC has attributed the recent measles outbreak, in part, to the rise in the number of non-immunized individuals residing in the U.S., as measles is a highly contagious disease and requires a large majority of the population to be immunized to prevent the spreading of the disease.

Immunization Requirements And Evolving Laws

Every state in the U.S. has enacted laws that require children to receive vaccinations against certain diseases as a condition of admission to school. These laws also carve out certain exceptions to immunization requirements, which typically include medical reasons, philosophical beliefs, and religious beliefs.

In general, a child may claim a medical exemption if a medical provider determines that administering the vaccine to the child would compromise the child’s health. The religious and philosophical exemptions are based on a parent’s assertion that vaccination of the child conflicts with the parent’s religious or personal beliefs, respectively.

The intricacies of these laws – including the required vaccines, the types of exemptions recognized, the documentation required for proof of immunization or exemption, and schools’ obligations to report students’ immunization compliance to state authorities – vary from state to state.

Perhaps not surprisingly, given the highly contagious nature of the disease, the recent measles outbreaks have prompted policymakers across the country to consider whether current exemptions from state vaccination requirements are appropriate. Some state legislatures are concerned that families who choose to not vaccinate their children for religious or personal beliefs are harming others, including those who are too young to get vaccinated, who are unable to get vaccinated for health reasons, or who are otherwise vulnerable to diseases.

Indeed, following a measles outbreak in 2015 that spread from Disneyland, lawmakers in California got rid of the state’s religious and personal belief exemptions to immunization requirements. In doing so, California joined a small minority of states, including Mississippi and West Virginia, that recognize only a medical exemption for state-imposed vaccination requirements. Oregon is one of the latest states to contemplate this move, and in May 2019, the Oregon House passed a bill that would remove the state’s religious and philosophical exemptions.

Lawmakers in New York, the epicenter of the 2019 measles outbreak, have responded even more aggressively, seeking to stem the spread of the disease by immediately requiring that all non-immunized individuals be vaccinated, banning unvaccinated students from school, and forcing closures of certain public places and schools. In addition, California policymakers are considering whether to heighten the current standard for obtaining a medical exemption, in response to a significant uptick in the use of medical exemptions that followed the removal of the religious and philosophical exemption just a few years ago.

Understanding the laws that apply, and staying abreast of any changes to these laws, is the first step independent schools should take to effectively manage these risks. Once a school has identified applicable laws, we recommend conducting an internal audit to confirm that the school’s immunization policies and practices are in compliance. A school should also confirm that all immunization information on file for students (and provided to state agencies in accordance with applicable law) is accurate.

As the recent measles outbreak has impacted nearly half of the 50 states, schools should anticipate that lawmakers across the nation will be closely scrutinizing current immunization laws. This heightens the need for schools to ensure that they stay abreast of any changes to applicable laws.

Exclusions In The Event Of Outbreaks

Independent schools are confronting the dilemma of whether it is appropriate to exclude non-immunized students from school. Some schools have sought to prohibit non-vaccinated students from enrolling, regardless of whether an individual has a valid exemption from vaccination requirements under applicable state law. This approach, however, can be risky, as it may expose schools to claims of discrimination based on religious beliefs or disability.

Short of total exclusion, schools may face similar challenges in determining whether particular circumstances support the temporary exclusion of non-immunized students from campus. Issues these situations raise include the likelihood of an outbreak of the disease on campus – which may turn on such issues as the proximity to known outbreaks or confirmed cases, the type of contagious disease involved, whether students have been diagnosed with the disease or have simply been exposed to it, and other case-specific questions.

To help schools navigate these issues, we recommend implementing comprehensive immunization and communicable disease policies. These policies should reserve the school’s right to exclude any student who has a communicable illness, has been exposed to an infected person, or is susceptible on account of non-immunization, in the event of a vaccine-preventable or other communicable disease incident. The goal with such policies is to provide the school with a wide degree of latitude in responding to situations on campus that affect, or may affect, members of its community.

Employee Requirements

One of the more contentious issues that schools confront is how to handle immunization issues with employees. For instance, should schools require faculty and staff to receive vaccinations?

The vast majority of states do not require school employees to be vaccinated or provide proof of immunization against certain diseases. Nonetheless, a school might want to adopt such a requirement in order to further its health goals and community interests. For one thing, this may increase the number of individuals on campus who are immunized – which may help prevent highly contagious diseases, such as measles, from spreading within the community. In addition, even if a school chooses not to require employees to be vaccinated, having employee immunization information on hand makes it easier for the school to identify non-immunized employees who may be at risk in the event of an outbreak.

On the other hand, it may be against a school’s culture to require employees to share this type of information, and collecting it may be risky. For instance, having immunization information may put a school on notice about an employee’s medical condition or religious beliefs, which may later surface in connection with a claim of discrimination based on disability or religion. In addition, a school may face challenges in deciding how to proceed if an employee refuses to get vaccinated. Each school needs to weigh the pros and cons of collecting this type of information from employees and make a decision consistent with its own culture, values, and risk-management philosophy.

Before requesting and collecting immunization information from employees, a school should also determine whether there are any applicable state laws. Provided that obtaining such information is allowed, we recommend that schools consider updating their employment offer letters and employee handbook accordingly. Schools should follow their state’s student exemption framework for employees – meaning, for instance, that if the state recognizes medical and religious exemptions for students, employees should be allowed to claim such exemptions as well. Schools need to take care to ensure that employee immunization information is treated like other employee medical information – i.e., that it is kept separate from the personnel file and treated as confidential.

Regardless of whether a school opts to require employees to provide proof of immunization, we recommend that all schools adopt employment policies governing communicable illnesses. These policies should provide a school with discretion to restrict or exclude employees from campus when necessary for the welfare of the employee or other members of the community. This is an opportune time for schools to revisit their employee handbook’s communicable illness policy to determine if it is in sync with their goals and best practices.

Responding To A Reported Case

It is equally important for a school to decide how it will respond if a member of the school community contracts or is exposed to a highly contagious disease, and to update its crisis management protocols accordingly. In general, we recommend requiring the individual to immediately leave campus and not return until cleared by an appropriate healthcare provider. In addition, a call to the local health department may be appropriate to obtain guidance about next steps, such as informing other members of the community who may have been exposed to the individual, requiring any exposed persons to verify immunization, and recommending that such individuals consult with their healthcare providers.

To the extent that students (or employees) on campus are not immunized to the particular disease, schools should also consider removing and excluding them from campus until the danger has passed, consistent with the communicable illness policies and protocols discussed above. A boarding school also may need to consider, in consultation with health professionals, whether it is more appropriate to quarantine certain residential community members or to send them home.

Throughout this process, a school should take appropriate precautions to protect the identities of individuals who contract the disease as well as those who are excluded from campus. In addition, schools should consider whether educational initiatives to families or employees about the symptoms of the disease and potential medical support are appropriate.

School Trips

Another critical issue that independent schools may confront is vaccination requirements for school-sponsored trips. We recommend that, for international trips, schools require all participants – including students, trip leaders, and chaperones – be in compliance with any mandatory or recommended vaccination requirements. Doing so may be particularly essential for trip leaders and chaperones to ensure they are allowed access to the country and to minimize the likelihood of them contracting a disease that may jeopardize their ability to supervise students on the trip.

Schools should also contemplate how best to inform individuals participating in the trip of any immunization obligations and destination health concerns, and create a system for collecting and maintaining vaccination records for trip participants, consistent with applicable laws and best practices.

If a trip is planned to a destination that is experiencing an outbreak, the school may want to consider either requiring all participating students, trip leaders, and chaperones to provide proof of immunization to the particular disease as a condition of participation, or even cancelling the trip altogether. We encourage schools to consult with appropriate medical providers and legal counsel in making these determinations.

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Outbreaks of contagious diseases can create anxiety and headaches for school leadership. Implementing comprehensive, well-crafted immunization and communicable disease policies for students and employees, however, can help schools prepare for and effectively respond to such outbreaks, whether they involve measles, Ebola, or any other number of communicable diseases making headlines.

If you have any questions about complying with applicable vaccination laws or best practices for preparing for, or responding to, a vaccine-preventable disease outbreak, please contact a member of the Firm’s Education Practice Group.