Issue

  1. What are the applicable authorities concerning vaccine exemptions and mandates in California schools, both at the private and public level?
  2. What is the scope of the vaccine exemption?
  3. What is the applicable authority concerning governing body and length of exemptions?

Statement of Facts

California has established laws requiring vaccinations for both public and private school children. There is no differentiation for public or private schools within California. Day care facilities in California are also held to that same set of vaccination requirements. As of this writing, the COVID-19 vaccine is included in the state’s vaccination requirements, with the requirement beginning July 1, 2022, for grades 7-12 or when the U.S. Food and Drug Administration approves the vaccine for the applicable age group, whichever is later. Additionally, California allows for medical and religious exemptions. California law also expressly allows for the exclusion of exempted students from school during an outbreak. Even in the event of an epidemic, outbreak, or emergency, California still allows exemptions. 

An exemption form is universal and applicable to all schools. Exemptions can be for one or many vaccines, so there is no need to submit multiple exemption applications for each vaccine. Additionally, because the exemption form is broad, new exemptions do not need to be acquired should the child change schools.

Discussion

Controlling Law/Authority

The prevailing and applicable laws surrounding vaccination requirements and exemptions are the California Health and Safety Code §§ 120325 – 120380, Senate Bill 276, and Senate Bill 714. Beginning January 1, 2021, medical exemptions can only be issued by MDs or DOs licensed in California and must meet applicable Centers for Disease Control and Prevention (CDC), Advisory Committee on Immunization Practices (ACIP), and American Academy of Pediatrics (AAP) criteria. The California Department of Public Health (CDPH) has the ultimate authority over medical exemptions and reserves the right to conduct its own review at its discretion.

Obtaining Medical Exemptions

There are 10 diseases for which only medical exemptions can be obtained: diphtheria, haemophilus influenza type B, measles, mumps, rubella, pertussis, poliomyelitis, tetanus, hepatitis B and chickenpox. COVID-19 vaccination requirements, though not yet codified, will allow for medical and personal belief exemptions. All new medical exemptions for school (both private and public) and childcare must be issued through the California Immunization Registry Medical Exemption (CAIR-ME) website. For medical exemptions submitted and approved before 2021, the filed medical exemption will remain valid until the child enters the next grade, the medical exemption’s expiration date (if applicable), or until the exemption has been revoked due to the issuing doctor’s disciplinary action. Existing medical exemptions do not need to be uploaded to CAIR-ME to remain valid.

CAIR-ME is an online exemption application that, once completed, will provide a request number to be furnished to the child’s doctor. The doctor will then fill out the rest of the application and provide a copy to be sent to the school. Before taking the request number to your doctor, ensure that the doctor is not:

  • on probation for immunization-related practices,
  • have a pending accusation for immunization-related practices, or
  • CDPH determines they are a public health risk.  In this case, the physician may be barred from submitting an exemption for no less than two years.

To find out if a physician has been disciplined by the Medical Board or Osteopathic Medical Board, a search can be conducted on the Department of Consumer Affairs license search website. 

Length/Scope of Exemption

Medical exemptions approved through CAIR-ME are valid for one year or until the child enters a higher grade, whichever is earliest, so long as the exemption is not revoked or expired. As stated earlier, medical exemptions may be revoked if the CDPH finds misconduct on the doctor’s side, or they may expire if the doctor writes an expiration date shorter than the one year allotted for a medical exemption.

Appeals

Should a parent disagree with the revocation, expiration, or denial of a medical exemption, the California Health and Human Services Agency provides for an appeal process. At this juncture, the CDPH may also step in to review as needed.

Religious Exemptions

Religious exemptions fall under the purvey of personal belief exemptions. Though SB 277 eliminated personal belief exemptions, these exemptions only applied to the 10 diseases listed above. COVID-19 is not yet on this list but can be incorporated through Health and Safety Code § 120325(a)(11). Much of the law surrounding religious exemptions is stemmed in employment law. Within common law, religious exemptions do not need to be freely granted so long as religiously motivated actions aren’t insulated from laws unless a law singles out religion for disfavored treatment.

Other controlling authority regarding religious exemptions are Title VII of the Civil Rights Act of 1964 and the Equal Employment Opportunity Commission. Broadly stated, religious discrimination is protected and allows for reasonable accommodation of religious beliefs unless doing so poses an undue hardship. Employers, then, have wide discretion over granting religious exemptions if the exemption does not seem sincere. As applied to schools, faculty and school staff who refuse to adhere to the COVID-19 vaccination requirement have been forced to quit. It is unlikely wrongful termination cases of this sort will have much success in the court system as most religions on their face do not oppose the vaccine and the laws requiring vaccination do not single out any particular religion.

In general, religious freedom is protected by the First Amendment of the Constitution, specifically within the Free Exercise Clause. Case law has clearly dictated that while the freedom to believe is absolute, the freedom to act is not. The Lemon test outlines the steps courts will use in determining whether a law is religiously discriminatory. The law must (1) have a secular purpose; (2) with its principal or primary effect must be one that neither advances nor inhibits religion; and (3) the law must not foster excessive government entanglement with religion. This is further supported by Jacobson v. Massachusetts, 197 U.S. 11 (1905), wherein the Supreme Court ruled that states can mandate vaccinations in the interest of public health and safety.

Overall, vaccine exemptions do exist and can be granted depending on the discretion of the institution granting it, even though the law has been intentionally vague on this.

Conclusion

Strict vaccine mandates exist for 10 diseases: diphtheria, haemophilus influenza type B, measles, mumps, rubella, pertussis, poliomyelitis, tetanus, hepatitis B, and chickenpox. COVID-19 vaccination is set to be added to this list, provided there are medical and personal belief exemptions. California has a new reporting system for obtaining medical vaccine exemptions through CAIR-ME. Religious exemptions may be honored for the COVID-19 vaccine, but the law on this remains ambiguous as to the scope and discretion of the exemption. Institutions reserve the right to pry into exemption requests, and they have the right to do so provided the actions are not discriminatory in nature or effect.

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