Ripped From the Headlines: Families Sue Massachusetts over Mandatory Flu Vaccine for Students

By Allen Clendaniel of Sedor, Wendlandt, Evans & Filippi, LLC

Part Four of the series, Ripped from the Headlines

Recently, my family all got the flu shot at a local elementary school.  Many Alaskans are doing the same to avoid a barrage of flu cases on top of the COVID-19 pandemic.  Not all families in the United States, however, are happily lining up for flu shots.  Just last week, six families sued Massachusetts Governor Charlie Baker and the State Department of Public Health over Massachusetts’ requirement that school children be vaccinated against the flu.

In August of this year, Massachusetts mandated that all students must receive the flu vaccine by December 31, 2020 to be admitted for the rest of the school year.  The lawsuit challenges that executive order.  The lawsuit alleges that the emergency order removes a religious exemption from the flu vaccine requirement.  A GoFundMe website, has raised at least $80,000 to fund the lawsuit. There is also private “Flu You Baker” Facebook group, referring to the Massachusetts Governor, which has more than 13,000 members. 

The 38-page complaint seeks an injunction prohibiting the State of Massachusetts from enforcing the flu vaccine mandate.  The plaintiffs claim that the mandate violates the Massachusetts and United States constitutions.  The lawsuit advances several theories, including that it violates the plaintiffs’ right to religious freedom and their right to parent their children as they see fit. 

Currently, the State of Alaska does not require a flu vaccine for school admission.  Alaska educational regulations do, however, require that students be vaccinated for diphtheria, tetanus, polio, pertussis, measles, mumps, hepatitis A, hepatitis B, and rubella (except rubella is not required in children 12 years of age or older) and varicella.  4 AAC 06.055 provides an exemption from the immunizations “if the child … has an affidavit signed by his parent or guardian affirming that immunization conflicts with the tenets and practices of the church or religious denomination of which the applicant is a member.”  Alaska’s vaccine regulation has not been legally challenged in Alaska. 

With the recent hopeful news about a vaccine for COVID-19, it is possible that states, including Alaska, may consider requiring students to receive a COVID-19 vaccine.  Such a requirement could face a legal challenge similar to the Massachusetts lawsuit.  In evaluating the constitutionality and enforceability of a COVID-19 vaccine mandate, courts would likely look at the availability of the vaccine for all students.  Another important factor would be whether the mandate contained an exemption for faith-based objections to the vaccine.

Some Alaska school districts may consider issuing their own flu vaccine or COVID-19 vaccine requirement.  Whether such a requirement would be enforceable would likely depend on such factors as the availability of the vaccines, the risk of the spread of the flu and/or COVID-19 at that time, and exemptions for religious objection.  An alternative option with less legal risk would be for school districts to promote and facilitate vaccination of students and their families. 

We are all tired and frustrated with the COVID-19 crisis.  The good news about a vaccine has given us some hope that there is light at the end of the dark coronavirus tunnel.  After front-line health workers and at-risk individuals are vaccinated, I would love nothing more than to go my local elementary school with my family for a COVID-19 vaccine shot! 

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