With the development and approval of two highly effective COVID-19 vaccines, it appears as though the nation and the state are at the beginning of the end of the unprecedented outbreak that has lasted almost the entirety of 2020. While the vaccine rollout will not happen overnight, and disruptions and setbacks are to be expected, many are rightly breathing a sigh of relief as we all anticipate a return to our pre-pandemic lives. However, as the nation and the world begins that transition, many questions remain unanswered.
In some surveys, confidence in the vaccine seems surprisingly low, with only two-thirds of Americans expressing a willingness to take the vaccine once it is distributed. When efficacy rates of approximately 95% are contrasted against a potential vaccination rate as low as 65%, the question arises as to whether the government can mandate that all schoolchildren receive a COVID-19 vaccination to reduce the spread of this deadly disease.
The short answer is that the government can, and has, mandated vaccinations in the past and this authority is well established. The legal precedent for mandatory vaccinations was first established in 1905 by the U.S. Supreme Court decision, Jacobson v. Massachusetts. In that case, the state of Massachusetts, with an exception for children, adopted a law providing that
[T]he board of health of a city or town if, in its opinion, it is necessary for the public health or safety shall require and enforce the vaccination and revaccination of all the inhabitants thereof and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars.
Subsequently, the city of Cambridge adopted a regulation requiring all the inhabitants of the city be vaccinated against smallpox, a disease with a 30% mortality rate which has since been eradicated, due to worldwide vaccinations. Jacobson refused to be vaccinated, was criminally charged, fined, and jailed until he paid the fine. Jacobson appealed the conviction, arguing that the statute requiring vaccinations violated the 14th Amendment of the United States Constitution. That amendment provides, “No State shall make or enforce any law abridging the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
The Jacobson court ruling determined that the state’s authority to enact the statute derived from its “police powers” and further “recognized the authority of a State to enact quarantine laws and ‘health laws of every description;’ indeed, all laws that relate to matters completely within its territory and which do not, by their necessary operation, affect the people of other States.” The court also noted that according to “well-settled principles,” a state’s police power includes at least the power to adopt reasonable regulations to protect public health and safety.
In New Jersey, a similar argument, with similar results, was made in Sadlock v. Board of Education, where the New Jersey Supreme Court, under similar facts, reached a similar conclusion. The state’s authority with respect to students is found in N.J.S.A. 26:1A-9 which provides, “Every…board of education having control of any public or private school in this State shall insure compliance with the State Sanitary Code as it pertains to the immunization against disease of children attending or having the right to attend such school, including any provision of the code which prohibits attendance by a child who has not been immunized.”
The law also allows for an exemption if the immunization would interfere with the free exercise of the student’s religious rights. In addition, N.J.A.C. 6A:16-2.2 provides that each student is required to be tested for tuberculosis based on rates in specific communities or population groups. Moreover, the district must report any communicable disease, confirmed or presumed, to the local health office.
As to employees, according to N.J.S.A.18A:16-2, a board may require employees and candidates for employment to undergo a physical examination. If the examination indicates a communicable disease, the employee may be granted paid sick leave until recovered, unless the employee’s absence exceeds two years. Additionally, according to N.J.S.A. 26:4-6, any entity having control of a school, to prevent the spread of a communicable disease, may prohibit a teacher’s attendance and specify the time during which the teacher is required to remain away from school.
In conclusion, it is clear from the above, that state officials have the authority to mandate a vaccination for all children attending public schools, and at least the authority to exclude teaching staff until the individual has recovered from their illness.
For additional information, board members may consult with the board attorney, or call the Legal Department at (609) 278-5254.