It's unlikely ASU will be able to mandate the COVID-19 vaccine anytime soon, despite demands from student and faculty groups.
The Arizona Daily Star reported in June the governor's office had no problem allowing requirements for vaccines like measles, mumps and rubella because those have Food and Drug Administration approval, and at the time, no COVID-19 vaccine had received full FDA approval.
However, after the Pfizer vaccine received full FDA approval in August, the governor's office declined to reverse course and continues to support the anti-mandate rule upheld by Executive Order 2021-15 and the state legislature's budget bill.
"In order for anything to change in this area, the law would have to be changed," said C.J. Karamargin, the director of communications for Gov. Doug Ducey's office.
With the laws in Arizona taking the decision-making on vaccine requirements away from public universities, ASU likely won't be able to require vaccines until the law is changed or until a lawsuit is completed, both of which won’t be soon.
If the University wanted to challenge the legality of the law, it would face an unprecedented battle in court, according to Alexandra Bhatti, a faculty associate at the College of Health Solutions who is also a lawyer.
"How successful that would be, though, is really kind of the question of the day and the question of the year," Bhatti said. "What's going to be really hard to assess is whether institutions like ASU are willing to take that on."
Leila Barraza, an associate professor at the Mel and Enid Zuckerman College of Public Health at UA, has been working with professors at the Sandra Day O'Connor College of Law on university-level vaccination policies and agrees the situation is unprecedented because of the lack of state legislation on vaccination requirements.
According to a paper written by Barraza and ASU law professor James Hodge, very few states have specific laws relating to vaccine requirements at the university level, and even those that do only require certain vaccines or provide exemptions for a wide number of students.
"Most states don't have specific laws that require vaccines for universities, as they do for K-12 schools, so oftentimes, it is done at the university level," Barraza said.
Arizona doesn't have any laws governing vaccine requirements in higher education, according to the Arizona Department of Health Services.
It's unclear whether the University will require vaccines for faculty and staff under the Biden administration's mandate requiring all companies with more than 100 employees to require vaccination or weekly testing. Arizona Attorney General Mark Brnovich filed the first state lawsuit against the federal requirements, calling them an "egregious federal overreach" on Twitter.
The executive order and state legislature bill prevent the University from requiring masks on campus at all times, according to Bhatti. But this hasn't stopped ASU from requiring masks in certain buildings.
Karamargin said the governor's office is willing to update its stance as new information comes, but doesn't see it happening soon. Instead, he said the governor encourages everyone to get vaccinated because it is safe and proven effective.
"The faster we can get as many Arizonans and individuals who attend Arizona's universities to get the vaccine, the quicker we will be able to put COVID behind us," Karamargin said.
In lieu of a vaccine requirement, Bhatti says the University can and should focus on vaccine promotion among students and faculty.
"Even if they can't require it, can they do more about education and promotion of the importance of vaccination and preventing the spread of COVID?" Bhatti said. "They can probably still make headway there. You fall back on good public health principles and education and promotion in the interim of being able to actually have a requirement."
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