Super Lawyers Magazine
Recent outbreaks remind leaders of the precautions they must take.
By Lisa A. Runquist
“First appeared on March 23, 2015, on ChurchLawAndTax.com
Those of us in our late 50s or older have probably never been vaccinated for measles, mumps, chicken pox, or other “childhood” diseases. Why? Because we had those diseases as children. In fact, anyone born before 1957 is automatically considered to have immunity to measles.1 Once vaccinations became readily available in 1963, the majority of parents who had experienced these diseases directly saw to it that their children were vaccinated to spare them the misery and possible serious complications that could result from those diseases. As a result, these diseases were virtually eradicated from the United States.
Many parents today have chosen not to vaccinate their children. Some have done so for religious reasons, some because of their personal beliefs, some because they are concerned about possible side effects from the vaccinations themselves, and a few for medical reasons. As a result, in many parts of the United States, the percentage of unvaccinated children has risen to the point where the percentage of those vaccinated is no longer sufficient to limit the spread of these diseases if and when they are re-introduced.
Although these diseases may have been eradicated in the United States, they continue to be prevalent in other parts of the world, and travel from around the world continues to increase. This has resulted in the spread of rare diseases that make headlines, such as the Ebola virus, but also in the spread of some more common diseases. The recent measles outbreak in the U.S. has brought this problem to the forefront. The Centers for Disease Control and Prevention states that:
The United States experienced a record number of measles cases during 2014, with 644 cases from 27 states reported to CDC’s National Center for Immunization and Respiratory Diseases (NCIRD). This is the greatest number of cases since measles elimination was documented in the U.S. in 2000.2
And in the first two months of 2015, “170 people from 17 states and the District of Columbia were reported to have measles. … Most of these cases [125 cases (74%)] are part of a large, ongoing multi-state outbreak linked to an amusement park in California.”
One or more travelers (who could either have been a resident of another country or a U.S. resident who had been infected while traveling) appear to have visited the park during the time they were contagious.
This unprecedented expansion of measles in the United States—50 years after it was brought under control, principally through the use of vaccinations, and 15 years after it was declared to be eradicated—has raised questions about whether the laws concerning contagious diseases are sufficient, as well as what specific policies and procedures should be implemented by churches and schools when faced with these issues. Although this discussion is focused on the measles outbreaks, contagious disease policies and procedures should not be limited to measles; rather, the development of these policies should be broad enough to cover other similar outbreaks.
1. What are the vaccination requirements under local, state, and/or federal laws?
The Centers for Disease Control and Prevention (CDC) is a federal governmental agency that oversees the spread, control, and eradication of diseases in the United States. However, CDC makes recommendations but does not pass laws about what should be done with regard to vaccinations throughout the United States. This is an area that is reserved to the states. The laws in each state vary significantly. Some states take the position that decisions to vaccinate or not to vaccinate are matters best left to the individual, while others attempt to impose vaccinations on just about everyone. However, even states with little or no regulations in this area may take actions to protect the health and welfare of the people when an emergency arises.
All states allow medical exemptions to vaccination. However, obtaining a medical exemption is not easy. Some states may be able to overrule the doctor granting the exemption if the examiner determines that the exemption is not met.
All states except Mississippi, West Virginia, and Minnesota allow a religious exemption, although Minnesota does allow a broader personal exemption. The extent of the religious exemption and the requirements vary significantly from state to state. There must be a firmly held religious belief against vaccination, and some states require that the individual belong to a religious organization that holds these beliefs.3 There have been bills introduced in at least eight other states to eliminate the religious belief exemption, to restrict the religious exemption further, or to require physician counseling as part of the religious exemption.
Currently, 18 states (including Minnesota) specifically provide for an exemption to vaccination based on philosophical, personal, or conscientiously held beliefs. However, bills have recently been introduced in a number of these states that would eliminate the exemption, with several bills also introduced that would require physician counseling as part of the exemption.
In addition, several recently introduced bills would allow vaccines to be administered to minors who are 14 years of age or older, without parental consent.
Specific information about the laws concerning vaccination can be found on various websites, such as the CDC school vaccination law website and the National Vaccine Information website.
2. Does the government have a right to insist on vaccination? What rights do parents have to prevent their child from being vaccinated?
According to the CDC, “Measles is so contagious that if one person has it, 90 percent of the people close to that person who are not immune will also become infected.”4
The law allowing compulsory vaccination is well established. Over a century ago, at a time when smallpox was pervasive, the United States Supreme Court ruled in Jacobson v. Massachusetts that it is within the police power of each state to enact a compulsory vaccination law, and that it is up to the legislature, rather than the courts, to determine whether vaccination is the best mode for the protection of public health and public safety.5 The fact that some may be injured by the vaccine is not sufficient to limit this power according to that ruling:
for nearly a century, most of the members of the medical profession have regarded vaccination, repeated after intervals, as a preventive of smallpox; that while they have recognized the possibility of injury to an individual … they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive…6
The Court also pointed out that this was not a new method of preventing the continued spread of a contagious disease. “[V]accination as a means to prevent the spread of smallpox has been enforced in many States by statutes making the vaccination of children a condition of their right to enter or remain in public schools.”7
Even if there is a portion of the medical community that opposes vaccinations, this is insufficient to overrule the legislative determination requiring mandatory vaccinations to protect the public safety. If an individual can prove that he/she will be harmed by the vaccination, an exception should be made; however, without such proof, the state can require vaccinations to prevent an epidemic.
As noted above, most states allow various exemptions, the principal one being the medical exemption (50 states), and the second one being the religious exemption (48 states).I In part because of the recent measles outbreaks, however, there has been a move in many states to limit or eliminate the ability to “opt out” of vaccinations. Interestingly enough, in Texas—likely because of its experience with the Ebola virus—one of the bills introduced expands the police powers of the state to detain individuals suspected of exposure to communicable diseases.
3. What is the place of a religious exemption with regard to a contagious disease?
The religious exemption was designed to protect the free exercise of religion, as required by the First Amendment. The question is how far this exemption extends when the public health and welfare is at stake.
Most cases of measles in the U.S. occur among those who were unvaccinated or had unknown vaccinated status. In 2008, this was true of 95 percent of the cases among U.S. residents, most of whom were U.S. school-aged children whose parents had religious or philosophical objections to vaccination.8
This was demonstrated again in 2014 when the largest of the 23 measles outbreaks in the U.S. occurred primarily among unvaccinated Amish communities in Ohio. That outbreak resulted in 383 of the total 644 cases for the year.9
But perhaps the most egregious situation occurred in 1990–1991 in Philadelphia. Two Christian churches, Faith Tabernacle Congregation and First Century Gospel Church, both of whom ran their own schools, had students who were never vaccinated. When the children became ill, their parents prayed instead of seeking medical help. These children also brought the disease home with them, spreading it to others in the family. By the time public officials became aware of the situation and were able to investigate in early February of 1991, they found that 134 of the 201 students at the Faith Tabernacle School were infected (apparently the school voluntarily closed shortly thereafter). By February 15, in the space of 10 days, five children were dead.10 In spite of the religious exemption, public officials were able to get “a court order to examine the churches’ children in their homes, then to admit children to the hospital for medical care,” according to the New York Times. “Finally, they did something that had never been done before or since: They got a court order to vaccinate children against their parents’ will. Children were briefly made wards of the state, vaccinated, and returned to their parents.”11
Although the epidemic did not start with the schools (a teenager who recently returned from a trip to Spain attended a rock concert while contagious), and although no laws were broken (the church, schools, and parents relied on the religious exemption), the large number of unvaccinated students turned out to be a recipe for disaster: The New York Times reported that “Over a third of those infected — 486 of 1,424 — belonged to one of those two churches, as did six of the nine dead children.”12
4. New Issue—Adults.
Almost all of the laws concerning measles vaccinations have focused on school children. This emphasis on the children and the necessary actions of the schools to control measles outbreaks made sense, since, as noted above, most adults past a certain age had been exposed to measles as children. However, a significant majority of those who came down with measles as a result of the recent amusement park outbreak (59 percent) were adults over the age of 20.13 Most were unvaccinated (perhaps relying on the fact that measles was considered to have been eliminated in the United States), but some of them had indeed been vaccinated. Some may have been vaccinated before 1989, when the federal government began recommending two vaccinations rather than just one. In addition, from 1963 to 1967 a killed version of the vaccine was offered as well as the live vaccine, but has since been shown to not have the effectiveness of the live vaccination. Anyone having had the killed version of the vaccine may also find themselves still at risk.14
Adults travel more and go more places than do children. Once infected, they are more apt to expose more people to the disease. Even more of a concern is that they often find themselves sicker when they do get one of these childhood diseases as an adult.
Many have been surprised at the number of adults being infected. In response to this, the University of California has instituted a requirement that all students be vaccinated by 2017 in order to be enrolled.
Both churches and schools must recognize that adults may not be immune today as they had been in the past. It is no longer enough to be solely concerned about the vaccination status of children. Teachers and other adults must be subject to the same requirements that a public facility might impose on the children if an outbreak is to be controlled.
5. What should your particular school, ministry program, or church do? From a risk management perspective, is there something you need to do now, before you directly face the possibility of an outbreak?
Many private and public schools are adopting policies that require vaccinations before the child can attend. (In fact, in California some physicians have been adopting the same policies.) And one vaccination may not be enough. With measles, it has been shown that there needs to be at least two vaccinations to assure protection (93 percent are protected with the first vaccination; 97 percent with the second).
But if a school or church believes that religious freedom or personal choice is more important than compulsory vaccination and chooses not to adopt such a policy, what communication should there be with the parents informing them of the position?
If notified that the school or church does not require vaccinations, some parents may decide to remove their children, especially if the child is unable, for medical reasons, to be vaccinated themselves.
And if a child who attends a school or church comes down with the measles or some other communicable disease, what type of notification should be made to the other parents? Do you require unvaccinated children who may have come in contact with the sick child to remain at home for the incubation period, to limit its spread? What about unvaccinated adult teachers and staff?
And what if someone who is contagious attends a church service? Churches should also determine what types of policies they should adopt to control the spread of any contagious disease.
Because of the potential risk of spreading measles in day care centers, schools, and other educational institutions as a result of the close contact that occurs, the CDC recommends the following:
Control measures include:
• Exclusion and isolation of cases (they can return on the fifth day after rash onset if not immunocompromised) [note: the person is contagious four days before and four days after the rash, so the five day time period assures that the person is no longer contagious];
• Offering vaccine for those who are not up-to-date with age-appropriate vaccination (first dose to unvaccinated, second dose to those with one documented dose can be given at least 28 days after the first dose);
• IG [immunoglobulin] if immunocompromised …
• Persons who continue to be exempted from or who refuse measles vaccination should be excluded from the school, child care, or other institutions until 21 days after rash onset in the last case of measles [Note: the incubation period for the disease is between 7 and 21 days, with the average being 14 days].
All students and all school personnel born in or after 1957 who cannot provide adequate presumptive evidence of immunity should be vaccinated. Persons receiving their second dose and previously unvaccinated persons receiving their first dose as part of the outbreak control program may be immediately readmitted to school. However these individuals should be monitored for signs and symptoms of measles.15
Note, again, that the CDC may only make recommendations. Having said that, it is appropriate for a church or school to use these recommendations as a beginning point in developing a policy. However, some states have specific requirements for schools. Some of the recently introduced bills require schools to post immunization rates of pupils enrolled, require day care centers and schools to inform parents if a child with an exemption attends, or to require parents to receive a letter from the principal if an unvaccinated child is in attendance.
6. How can you develop a vaccination policy that conforms with your beliefs while following applicable law and expert recommendations?
In Developing Your Contagious Disease Policy:
a. Follow your state law.
b. If permitted, determine whether or not vaccinations of children will be compulsory. If the church or school does not require vaccinations, inform the parents of this policy. Even when the church or school otherwise requires vaccinations, if one or more students with a medical exemption attend, the other parents should be notified of this fact as well.
c. If someone acquires a contagious disease, they should immediately notify the church or school, and will not be permitted to attend during the time of contagion.
d. If a person attended the church or school while contagious:
i. Immediately notify the parents of every student who may have come in contact with the individual.
ii. Prohibit unvaccinated students and unvaccinated school personnel born in or after 1957 who came in contact with the individual to attend during the incubation period of the disease, unless they are immediately vaccinated (and monitor such newly vaccinated individuals for signs of the disease).
Regardless of the religious beliefs of the church, it should be noted that you need to protect your congregants, especially your children who cannot make decisions for themselves. At a minimum, you must try to isolate those who are contagious from having further contact with others. If you do not do so, the state can, and ultimately may, step in to do it for you.
Lisa A. Runquist has more than 35 years of experience as a transactional lawyer, both with nonprofit organizations and business organizations. She has working knowledge of franchise law, intellectual property law, employment law, tax law, and constitutional law (First Amendment). Lisa is an Editorial Advisor for ChurchLawAndTax.com.
1. The CDC states that: “One of the following is considered evidence of measles immunity for international travelers: 1) birth before 1957, 2) documented administration of 2 doses of live measles virus vaccine (MMR, MMRV, or measles vaccines), 3) laboratory (serologic) proof of immunity or laboratory confirmation of disease.”
2. http://www.cdc.gov/measles/cases-outbreaks.html
4. http://www.cdc.gov/measles/about/transmission.html
5. Jacobson v. Massachusetts, 197 U.S. 11 (1905)
6. Id. At 23.
7. Id at 31. The case references court decisions in Indiana, Georgia, California, Connecticut, Vermont, and New York.
8. http://www.cdc.gov/vaccines/pubs/surv-manual/chpt07-measles.html
9. http://www.cdc.gov/measles/cases-outbreaks.html
10. http://www.nytimes.com/1991/02/16/us/measles-and-faith-combine-in-5-deaths-in-philadelphia.html
12. id
13. http://www.latimes.com/local/california/la-me-measles-adults-20150212-story.html#page=1
14. http://www.cdc.gov/vaccines/vpd-vac/measles/faqs-dis-vac-risks.htm
15. http://www.cdc.gov/vaccines/pubs/surv-manual/chpt07-measles.html
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