Ohio bill prohibits COVID-19 vaccination mandates for public schools and universities; Outlaws mandates of vaccines without “full” FDA approval and “discrimination” against unvaccinated
On June 28, 2021, the Ohio legislature passed House Bill (H.B.) 244. If approved by Governor DeWine, H.B. 244 would prohibit Ohio public schools and universities from requiring that students and employees receive the COVID-19 vaccine. The bill would also prevent public schools and universities from requiring that unvaccinated individuals take infection control precautions different from those precautions taken by individuals who are vaccinated.1 DeWine has the option to sign H.B. 244 into law, veto or allow the bill to pass into law by inaction after 10 days. Because the bill does not include monetary appropriations, DeWine does not have the option to line-item veto. If approved, the bill would become law 90 days thereafter.
H.B. 244 is the latest of a group of bills proposed by Ohio lawmakers to prevent public and private sector mandates of vaccines approved by the U.S. Food and Drug Administration (FDA) for Emergency Use Authorization (EUA).2 Other proposed bills would apply to both public and private institutions. The Ohio bills are part of a slew of bills introduced nationwide to prevent public and private institutions from mandating vaccination against COVID-19.
Under H.B. 244, public schools and state institutions of higher education may not:
- Require an individual to receive a vaccine for which the FDA has not granted full approval.
- Discriminate against an individual who has not received such a vaccine, including by requiring the individual to engage in or refrain from engaging in activities or precautions that differ from the activities or precautions of an individual who has received such a vaccine.
The legislation provides an exclusion for hospitals or other health care facilities owned, operated by or affiliated with a state institution of higher education.
If approved by DeWine, the law will prevent public schools and universities from mandating that individuals on campus receive any of the vaccines currently approved by the FDA for EUA. Such prohibition applies regardless of whether an institution incorporates a process for granting exemptions from vaccination based on religious, medical or philosophical grounds. It is not expected that any of the vaccines will have “full” FDA approval by the start of the Fall 2021 semester.3
Furthermore, the anti-discrimination language in HB 244 will require schools and universities to implement a one size fits all method of infection control. The law requires schools and universities treat individuals who are vaccinated the same as those who are unvaccinated. This will have a direct impact on the ability to require unvaccinated individuals to wear masks, undergo testing, quarantine or live in separate congregate housing, all of which are suggested in the Centers for Disease Control and Prevention’s (CDC) most recent Guidance for Institutions of Higher Education.
Takeaways
If H.B. 244 is approved into law, Ohio public schools and universities will not be permitted to mandate students and employees receive any of the currently available COVID-19 vaccines. Furthermore, public schools and universities would not be permitted to require those who are unvaccinated to take infection control measures—including masking, testing and quarantine—which are different than those measures required of persons who are vaccinated.
Schools and universities subject to the law will have to reconsider their plans for vaccination mandates and differential infection control polices encouraged by public health agencies, including the CDC. They should consider whether it is necessary to put back into place general infection control measures previously set aside when it was permissible to require those who are unvaccinated to follow different rules. The law does not affect the ability of schools and universities to request voluntary disclosure of vaccination status, or to implement one size fits all infection control measures.
1 The vaccination mandate language was a last minute addition to a bill reducing barriers to the education of children of military service members, a bill which had bipartisan support. Last minute additions also include language permitting the Ohio Department of Health to require mandatory quarantine for inbound international travelers.
3 Pfizer-BioNTech submitted a rolling application for “full” FDA approval in early May 2021. Moderna submitted its application in early June 2021. The FDA goal for priority application review and approval is six months.
