- The Washington Times - Thursday, August 19, 2021

Schools can legally mandate the COVID-19 vaccine and require masks to be worn, according to legal experts, but the lawyers are split on whether anyone who catches COVID-19 from an unvaccinated teacher could successfully sue.

Schools have been able to mandate other vaccinations for decades, so requiring teachers — and even students — to get the new coronavirus shots would likely not be any different.

The only caveat would be if an individual qualifies for an exemption under the Americans with Disabilities Act for not being able to medically get inoculated or receives religious accommodation.

“In either instance, it is not a get-out-of-jail-free card,” said Leslie Jacobs, a law professor at the University of the Pacific.

Those who do receive some sort of accommodation could still be subject to other requirements like testing and masking.

The same is true for student-athletes, Ms. Jacobs said.

Dorit Reiss, a professor at UC Hastings College of the Law, noted the difference between COVID-19 shots versus other vaccinations is full approval by the Food and Drug Administration.

So far, the three COVID-19 shots offered by Pfizer, Moderna and Johnson & Johnson have only received emergency use approval. Pfizer has been used for individuals 12 years and older.

“It’s still an open question whether you can mandate a vaccine under an EUA, though increasing indications support this,” she said.

Recently, Supreme Court Justice Amy Coney Barrett refused to block a COVID-19 vaccine mandate for students at Indiana University. Lower courts had also upheld the requirement.

And a Texas hospital won its case after employees challenged a requirement that all health care workers there be vaccinated earlier this year. The Texas case alleged the vaccines had not yet been fully approved by the FDA so they shouldn’t be mandated but the court rejected that argument.

Similar to vaccine requirements, the legal scholars said mask mandates in schools are lawful, arguing there’s no constitutional right not to wear a mask.

“Which is more onerous, having to take a shot into your body or having to wear a mask?” said Ms. Jacobs. “The mask claims are weak.”

California became the first state to mandate all teachers get the COVID-19 vaccine or face regular testing.

In Washington, District Mayor Muriel Bowser has followed suit, announcing teachers in the district will be subject to the same requirements.

Robert Rabin, a professor at Stanford Law School, said schools and teachers have a general obligation to protect students from harm.

He said whether an unvaccinated teacher could face a lawsuit from a student who contracts COVID-19 would depend on where the dispute arises, because some states have passed legislation providing some liability protections.

“Tort law is state law. It’s not federal law by and large,” he said.  

The hurdle, though, would be proving that the student did in fact contract the virus from the teacher and not another source.

Ms. Jacobs warned that it’s “very, very difficult” to prove a specific individual gave another person a virus or disease.

“I imagine maybe we will see lawsuits, but I don’t think they will be successful,” she said.

Similarly, Paul Figley, a law professor at American University, said there have been very few successful lawsuits against schools involving the transmission of any disease.

“So it’s not just about COVID,” he said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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