Can Minnesota require COVID-19 vaccines for school children?

For many children, the end of summer means a trip to the doctor’s office to get vaccinated against diseases like measles, mumps, rubella and whooping cough — diseases that could spread readily in school environments, so much so that state law requires students to be vaccinated against them.

Another disease that can spread easily in school environments? COVID-19.

Currently, Pfizer’s COVID-19 vaccine is approved for children 12 and older under an emergency use authorization from the Food and Drug Administration. But full authorization of the vaccines could come within weeks, and trials are ongoing that could make vaccines available to all kids over the age of six months this year.

Could COVID-19 vaccines be added to the list of required shots for school-age kids in Minnesota?

The school and child care immunization statute

Minnesota’s school immunization law specifically names the vaccinations required for kids attending school or child care centers in the state. For kindergarteners, they include: measles, rubella, diphtheria, tetanus, pertussis, polio, mumps, hepatitis B and chickenpox. Other vaccines are required for older and younger kids.

Children may be exempt if they have a notarized statement noting a parent or guardian’s “conscientiously held belief” against the child’s vaccination. (This is a looser standard than many states’ and there have been efforts, unsuccessful, to tighten it up.) Kids can also go to school unvaccinated if a doctor signs a medical waiver indicating the child shouldn’t be vaccinated for medical reasons or in some cases that the child has sufficient immunity, as shown in lab tests.

There are two ways COVID-19 vaccinations could be added to the school immunization statute. The first is the Minnesota Legislature could change the law. Given the current split control of the Legislature and loud voices, especially in the Republican Party, opposing such mandates, that is unlikely.

The second way a COVID-19 vaccine could be required statewide is the rulemaking process, the way state agencies make specific policies to carry out laws enacted by the Legislature.

The Minnesota Department of Health was given rulemaking authority over the school and child care immunization law in the early 2000s, said Kris Ehresmann, MDH’s infectious disease director.

Following this process, MDH would put together a case for adding a vaccine to the requirements and then publish a request for public comments on the proposal in the state register. It would also inform the public and major stakeholders in the decision by putting out media releases and giving notice to doctors, health care organizations, childcare centers and schools, said Patricia Segal Freeman, legal counsel and policy advisor at MDH.

With those comments, the department would start to draft the rule and what’s called a statement of need and reasonableness, which specifies the problem at hand and explains how the rule is a reasonable solution to the problem. There would then be another comment period, a hearing, and then eventually a ruling by an administrative law judge as to whether the rule should be adopted or not. If a judge approves the rule, the governor has 14 days to veto it or let it become effective.

The process is not a quick one. “It takes 12 to 18 months to go through the process. It’s intended to make sure that we have adequate public input,” Ehresmann said.

There may also be a third route by which COVID-19 vaccines could be required for school children, at least in some parts of Minnesota. School districts could potentially require students to be vaccinated to be in school.

Still, the legal landscape is a little murky for Minnesota districts, said Jill Krueger, the director of the Network for Public Health Law – Northern Region.

At least one district in California, Los Angeles, has said it will require COVID-19 vaccination for students once a vaccine is fully authorized, and courts have upheld New York City’s authority to impose vaccine requirements that go beyond state requirements. Minnesota law gives local health officials the authority to close schools or exclude students who haven’t been vaccinated against a particular disease during an outbreak, but Krueger said whether such exclusion was related to a specific outbreak or was a standing requirement could make a difference legally.

Adding vaccines

Childhood immunization laws have been around since the 1850s, when smallpox vaccines were first required in Massachusetts schools. Ever since, they’ve been used as a means to ensure children — and a large swath of the population overall — were protected from disease.

“The school law is an effective tool from a public health standpoint because it ensures that a large proportion of our population is protected against vaccine-preventable diseases at a young age,” Ehresmann said.

But not every vaccine that is recommended by the Centers for Disease Control’s Advisory Committee on Immunization Practices is required in Minnesota schools, Ehresmann explained. Take the human papillomavirus (HPV) vaccine, which was approved by the Food and Drug Administration in 2006 and guards against HPV, a sexually-transmitted disease that causes cancer.

The vaccine, recommended for young people before they become sexually active, is not required in schools. Partly, that’s because it’s controversial to some. But HPV is also not a disease that transmits readily in the school setting like respiratory diseases — measles and mumps, for instance — do.

“You could easily argue for the value of this vaccine for that setting. However, right now things are really kind of fraught in terms of polarization as it relates to vaccination. And so that’s another consideration that we have to think about: will we do more damage by working to add this to the law than good in terms of the long term implications,” Ehresmann said.

COVID-19 is clearly transmitted in schools, making the setting piece less of an issue. But the vaccines, though deemed safe and effective by the FDA, remain controversial.

A survey by the Kaiser Family Foundation found the majority of parents of school-aged kids don’t want a vaccine to be required for their kids to go back to school. In that group are 58 percent of parents with kids ages 12 to 17, who are already eligible for the vaccine.

Three-quarters of parents with vaccinated children wanted their kids’ schools to require vaccination, while 83 percent of parents of unvaccinated kids ages 12 to 17 opposed it.

The majority of parents were, however, supportive of a mask requirement for unvaccinated people in schools; 63 percent of parents of school-age children favored mandated masks for the unvaccinated in schools.

Diane Peterson, director for immunization projects at the Immunization Action Coalition, a St. Paul-based organization that educated the public about vaccination, said she hadn’t heard of any states mandating COVID-19 vaccines for school children yet, though some states have enacted laws banning vaccine mandates.

Ehresmann said MDH is focused now on making sure people who are eligible for the COVID-19 vaccine get it, rather than on updating the school vaccination law. And there are a few reasons MDH would want to wait on adding a COVID-19 vaccine rule: first, the vaccines aren’t fully FDA-approved yet, and second, they’re not approved for younger kids. Third, MDH would like to see all three COVID-19 vaccines approved for use in kids so people have options. Currently, only the Pfizer vaccine is approved for kids under age 18.

But there are also considerations when it comes to people’s comfort level with the vaccines.

“We have evidence that schools and childcare are settings where COVID transmission happens, so ensuring protection for kids through vaccination in those settings makes sense,” Ehresmann said. “However, there’s a lot of considerations as it relates to multiple products and the timing of licensure and approvals, and there’s extreme polarization within the population right now. We want to make sure that we’re doing what’s in the best interest of public health, but also being thoughtful about where people are at.”

By the time some of those issues are worked out, public opinion could be in a different place, Ehresmann said, but in the meantime, nobody should expect vaccines mandated for the coming school year.