State provides update on student vaccine mandate

The California Department of Public Health held a “listening session” with stakeholder groups including CSBA on Feb. 11 to discuss plans to roll out the vaccine mandate once a COVID-19 vaccine obtains full authorization from the Food and Drug Administration for students in two specific age groups and grade spans.

First announced by Gov. Gavin Newsom in October, the mandate will go into effect once all the ages of students in grade spans 7-12 or K-6 are eligible to receive a COVID-19 vaccine that has been fully authorized for that age group by the FDA, and after the regulatory process, once initiated by CDPH, is complete. Currently, although Pfizer has received full authorization for its COVID-19 vaccine for ages 16 and up, being vaccinated has not been required of that age group to attend school. Under Gov. Newsom’s proposal, if a COVID-19 vaccine is given full authorization for ages 12-15 before July 1, 2022, and if CDPH completes the regulatory process before July 1, the vaccination could then be required for students in grades 7-12 to attend school unless they have a medical exemption. If approved after June 30 but before Dec. 31, 2022, it could then be required for students in grades 7-12 to return to school in January 2023.

Unlike the other 10 vaccines currently required by statute for enrollment, for any vaccine required prior to enrollment per a CDPH regulation, students will be eligible to use either the medical or personal exemption. (Health & Safety Code §§120335, 120338, 120372.)

CDPH met with stakeholders even though the FDA has currently only issued a full authorization for the Pfizer vaccine for ages 16 and up. Once any vaccine is fully authorized for ages 12-15, CDPH intends to initiate the emergency regulation process as provided for in the Administrative Procedures Act (APA).  (Government Code §§ 11346.1, 11349.6; 1 CCR 48-56.) Unlike the regular APA rulemaking process that can take months if not a full year to complete, emergency rulemaking can begin without prior notice to stakeholders, and if certain conditions related to the emergency are met, regulations can be approved by the Office of Administrative Law (OAL) in 10 days after their submission, without a public hearing, and with or without OAL receiving and considering written public comments.

CDPH stated during the listening session that any emergency regulation requiring a COVID-19 vaccination would only be in effect for one year before expiring. Any continuation of the emergency regulation after one year would either have to be subject to the regular rulemaking process or be superseded by legislation.