Student Exemptions

Generally, a valid medical exemption meets the requirements of the Americans with Disabilities Act. This means a treating healthcare professional writes it and describes a physical or mental impairment that substantially limits one or more major life activities or a record of such an impairment (i.e., a person may have a history of cancer or asthma, but it is in remission). Major life activities include walking, seeing, hearing, speaking, breathing, learning, working, caring for oneself, and performing manual tasks. The exemption must also explain why the protected condition makes receiving the vaccine or vaccines at issue more of a risk than a benefit.

For school-aged children, the state statute governs what is a valid medical exemption. However, this statute shouldn’t conflict with or be more restrictive than the federal law.

The Americans with Disabilities Act (ADA) requires that certain schools and colleges accommodate students who meet the legal requirements of this federal statute, assuming that institution can do so without undue hardship. The ADA’s definition of “disability” is written very broadly. The purpose and intent of the ADA and the case law involving the ADA do not support the idea that a covered institution can limit the protection of the ADA to such narrow confines. However, many state statutes that require vaccination for school-aged children limit vaccine medical exemptions to the CDC’s guidance. This issue continues to be litigated in these states. In addition, other federal statutes may protect students with disabilities, such as IDEA and Section 504.

Generally, vaccine exemptions are regulated by the Americans with Disabilities Act and any similar state law. The ADA may not apply to a private religious institution, but there are instances when the institution voluntarily adheres to it. In addition, other federal statutes may protect students with disabilities, such as IDEA and Section 504. The applicability of these disability rights laws is contingent upon the specific circumstances and the types of institutions and disabilities covered by the statutes.

For school-aged students, each state has a statute that governs medical vaccine exemptions.

Sometimes, a healthcare provider will not write a vaccine exemption, even if they believe vaccination is unsafe for their patient, simply because they don’t know how or what conditions legally qualify. Siri & Glimstad attorneys often work with clients and physicians to develop legally sound language based on the client’s medical history and diagnosis.

Entities covered by the Americans with Disabilities Act must accept an application for a medical vaccine exemption. However, the institution can deny the request if it doesn’t meet the law’s requirements or if it can prove that providing the exemption poses an undue hardship. Regarding a vaccine exemption, an undue hardship usually means that the entity alleges that permitting an unvaccinated person at the educational facility poses a risk of harm to others.

Some states have a very specific process for requesting a medical exemption for school-aged children and deny the request if the student does not meet the very narrow CDC contraindications and precautions for each vaccine at issue.

Regarding a vaccine exemption, an undue hardship usually means that the educational institution alleges that permitting an unvaccinated student on campus poses a risk of harm to others. However, the student will often have arguments to overcome this position. For example, if the vaccine or vaccines at issue don’t prevent transmission or infection, the arguments regarding undue hardship are not compelling. Siri & Glimstad’s managing partner, Aaron Siri, has several Substack articles regarding whether certain vaccines prevent infection or transmission of their targeted pathogen.

Medical exemptions are also complicated and nuanced, and a full review of the law for medical vaccine exemptions is beyond the scope of this FAQ. However, the basics of a medical exemption are as follows:

• Medical exemptions are based on a health provider-diagnosed medical condition, impairment, disability, condition, or history of the same. Examples include anaphylactic allergies, diabetes, neurological conditions, depression, arthritis, genetic conditions, previous adverse vaccine reactions, eye conditions, and asthma.
• A healthcare provider writes a medical exemption (but the patient can propose language for the medical professional to use).
• The language in a medical exemption should follow the language used by the U.S. Centers for Disease Control and Prevention (CDC) in its vaccine contraindications and precaution guidance and the language found in the Americans with Disabilities Act. However, strict adherence to the CDC’s contraindications and precautions table isn’t necessarily required (unless this requirement is written into the applicable state statute).
• The ADA and the state law equivalent govern medical exemptions. The ADA is a federal statute that applies to private and public institutions (but not necessarily private religious institutions).
• The ADA’s definition of “disability” is very broad, so many people are surprised to learn that they likely qualify for ADA protection and may be eligible for a medical vaccine exemption. The caveat is if a school-age student is seeking an exemption in a state with a very narrow statutory definition of what qualifies. These states include California and New York.
• Medical exemptions must be very specific and clearly connect the student’s medical condition with the need to avoid the required vaccine(s). Most physicians aren’t familiar with writing a legally sufficient vaccine exemption, so working with a knowledgeable attorney regarding the required language is helpful.

Maybe. It depends on the setting and state. For example, some state statutes do not permit religious exemptions for school-age children. Likewise, some states have statutory religious exemptions for college students, but most do not. However, if a school offers a medical exemption option, recent case law suggests it must also offer a religious exemption option. See the next question for more information.

Public institutions are required to adhere to the U.S. Constitution. Recent cases have held that the First Amendment’s Free Exercise Clause requires that if a public institution offers a discretionary secular (medical) vaccine exemption, it must also provide an option for a religious exemption. This was clearly established in a Supreme Court case, Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021). In another case, Tandon v. Newsom, 141 S. Ct. 1294 (2021), the Supreme Court ruled that an institution undermines the neutrality and general applicability of a policy that doesn’t allow religious exemptions when it allows comparable secular activities. This means that if a public institution allows medical exemptions and other unvaccinated individuals in the hospital and patient setting, then a policy that categorically prohibits religious exemptions for clinical rotation students is likely unconstitutional. These cases are particularly relevant for students as they are often required to receive childhood vaccinations such as MMR, varicella, and polio. If these vaccines are not required for employees, then the policy is likely unconstitutional, according to the rulings in Fulton and Tandon.

While the U.S. Constitution doesn’t apply to private colleges or medical facilities, other arguments are available. For example, it may be fruitful to present some of the following arguments, depending on the facts, circumstances, and applicable state law, with regard to the institution’s vaccine mandate and/or denial of a religious exemption:

• Breach of contract, including of the implied covenant of good faith and fair dealing;
• Violation of the institution’s mission statement, policies, or procedures regarding discrimination;
• Violation of the institution’s accreditation requirements;
• Contrary to local, state, or national health guidance;
• Contrary to other local facilities’ policies;
• Impermissible coercion and retaliation;
• Contrary to published science or otherwise unscientific, for example, mandates for vaccines that do not prevent transmission of the targeted pathogen (COVID-19, IPV, Tdap, etc.); or
• Violation of federal and state housing laws, such as the federal Fair Housing Act or California’s Fair Employment and Housing Act, if denial requires vacating student housing.

Critically, many of these arguments depend on the student submitting a robust and legally sound religious exemption request. Absent submitting a legally sound exemption, the grounds for most of the arguments listed above fall away because the student failed to meet the legal requirements for an exemption.

If a state statute governs, it will define what is required for a valid religious exemption. For example, in some states, to obtain a “valid” religious exemption for a school-age child, a parent must obtain a form from the local health department. In the college setting, the institution will have a policy and procedure governing religious exemption. Public schools and colleges are required to adhere to the U.S. Constitution regarding any religious exemption policies and procedures. On the other hand, private institutions have a lot of leeway to set their policies regarding vaccination and exemptions.

When writing an exemption for college or other higher education institutions, it is essential to understand that the law regarding religious exemptions is complex and non-intuitive. Many people are denied an exemption simply because they used common sense and expected the school to do the same. Some of the basics regarding a religious exemption are summarized below.

• Generally speaking, to qualify for a religious exemption to a vaccine mandate, the student must articulate a sincere religious belief that they hold, which prevents them from receiving the vaccine(s) at issue. Therefore, simply reciting statements such as, “I have sincere religious beliefs against vaccination” is generally insufficient.
• In most instances, institutions can question the sincerity or the religious nature of the beliefs.
• The terms “sincere” and “religious” are what the legal profession calls “terms of art,” meaning they don’t have the ordinary meaning that most people would ascribe to them. These terms are defined by case law.
• The student must clearly explain why their religious beliefs prevent vaccination with each vaccine that is mandated. Simply reciting religious beliefs is not sufficient.
• Whether the student qualifies for the religious exemption is not a theology question. It is a legal question and must meet legal strictures. The student can have a deeply held belief, but if the student presents the beliefs in a way that violates the “rules” for what is considered a valid religious exemption, it may get denied.
• Legal arguments or citations should never appear in a statement describing religious beliefs or in an application for religious accommodation.

At least one state appeals court has held that a private religious school does not have to provide a religious exemption to its vaccination requirement, even when a state statute provides the exemption.