Michael Vernick Quoted in University Business on Potential Legal Issues Surrounding Vaccine Mandates

Akin Gump litigation partner Michael Vernick has been quoted in the University Business article “With FDA approval: Does it matter in vaccine mandate?” which examines the issue of colleges and universities mandating COVID vaccines for students returning to campus in the fall.

Some schools, the article notes, have been adding a disclaimer, “with FDA approval,” to any requirements, since emergency use authorization (EUA) is the highest level of approval that vaccine doses have achieved.

According to Vernick, “one of the reasons that a university might condition a mandate on a vaccine obtaining full FDA approval is that in their mind, it may reduce their litigation risk because similar requirements have generally been based on vaccines with FDA approval.” Still, he added, “if somebody wants to sue, they’re going to sue.”

Delaying a mandate until vaccines are fully authorized could provide some protection for schools, the article says. Vernick noted that mandates under EUA, meanwhile, are still tricky for students because “it’s an untested area from a legal perspective” and there are differences between public and private institutions. One argument a plaintiff could make, he said, “is that the vaccines don’t have full FDA approval, but whether they prevail in that lawsuit is a different question.”

As for what could lead to a lawsuit, Vernick said, “If you’re going to have a rule that says, we really encourage people to get vaccinated – and then you impose a cost on them if they don’t – then I could see that triggering some sort of legal challenge.”

For those colleges and universities waiting as long as possible to impose a mandate, Vernick warned, “There’s all sorts of issues that a last-minute decision could trigger.”