iStock-vaccination-1.jpg (iStock-vaccination-1.jpg)

As we were all reminded when discussing the COVID-19 vaccine, Connecticut law (via Connecticut General Statutes §10-204a) had required public and private schools to condition a student’s entry into school upon providing proof of certain immunizations (including but not limited to immunizations against diphtheria, pertussis, tetanus, measles, mumps, rubella, and polio).  That statute provided and exception for where the child presents 1) a certificate from a physician, physician assistant or advanced practice registered nurse indicating that such immunizations are medically contraindicated because of the child’s physical condition, or 2) a statement from a parent or guardian that such immunizations would be contrary to the child’s (or the parent’s or guardian’s) religious beliefs.

The religious exemption has become controversial, and efforts had been made in recent legislative sessions to curtail it.  Finally, after contentious public hearings and debate, the Connecticut General Assembly passed (and Governor Lamont signed on April 28, 2021) House Bill 6423, entitled “An Act Concerning Immunizations.”

In a nutshell, this bill largely eliminates this religious exemption … but in the future.  The bill provides that the immunization requirement still does not apply to students enrolled in kindergarten through twelfth grade on or before the bill’s effective date (April 28, 2021) who had already submitted the statement required under the prior law for the religious exemption. Such students would remain exempt from the immunization requirement even if they transfer to another school in the state.

Students enrolled in pre-school or pre-kindergarten on or before the effective date of the bill who had already submitted the statement necessary for the religious exemption have until September 1, 2022 to comply with the immunization requirement, or within 14 days after transferring to a different public or private school program, whichever is later. The deadline for such pre-school/pre-K students complying with the immunization requirement can be altered if the school is presented with a written declaration from the child’s physician, physician assistant, or advanced practice registered nurse recommending a different immunization schedule for the child.

The bill retains the medical exemption to the immunization requirement, albeit with the medical professional now using a form prescribed by the Department of Public Health (“DPH”). The bill also retains the prior requirement that where a parent or guardian is unable to pay for such immunizations, the expense (upon the “recommendation” of the child's school’s board of education, or similar body governing a nonpublic school) shall be paid by the town. The bill requires the DPH to release annual immunization rates for each public and private K-12 school in the state.

So What May Happen Next? Those groups opposing the legislation have promised litigation.  Last century, in Jacobson v. Massachusetts, 197 U.S. 11 (1905), the U.S. Supreme Court ruled that states had the power to enforce compulsory vaccination requirements; subsequently, in Zucht v. King, 260 U.S. 174 (1922), the Court ruled that school districts could exclude unvaccinated students from their schools.  While most states have provided religious-based exemptions to their general immunization requirements, some states do not, and courts in other jurisdictions have previously rejected religious based challenges to student vaccination requirements.  It is unclear if the groups challenging the new law will rely upon updated jurisprudence (or a judiciary) that has been increasingly accommodating of religious beliefs.  Those opposing the new law have apparently asserted that they might bring a legal challenge based upon the “discrimination” between students resulting from the grandfathering of the religious exemption for current students. Stay tuned.       

So Does This Have Anything To Do With COVID-19?  This statute does not specifically mandate a COVID-19 vaccination, and it appears that our legislature will not be imposing any sort of COVID-19 vaccine mandate upon the schools.  Theoretically, a school on its own could decide to impose a COVID-19 vaccine requirement for all of its students (without a religious exemption), although the Americans with Disabilities Act arguably could require some accommodations for students with medical contraindications to the vaccine. Of course, this all presumes that the COVID-19 vaccine is available for students. Stay tuned (again).

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Alerts, commentary, and insights from the attorneys of Pullman & Comley’s School Law practice on federal and Connecticut law as it pertains to educational institutions, whether those institutions be public school districts, private K-12 schools, or post-secondary colleges and universities.

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