If the CDC adds COVID-19 to its childhood immunization schedule, does my Virginia child have to get the shot to go to school or daycare?

Subject

Whether a modification of the CDC's recommended childhood immunization schedule to include COVID-19 vaccination would require Virginia children to receive that vaccine as a condition of attending schools or childcare facilities.

Plain-English summary

On October 20, 2022, the CDC's Advisory Committee on Immunization Practices (ACIP) voted to recommend incorporating COVID-19 vaccination into the CDC's 2023 childhood and adult immunization schedules. Governor Youngkin asked AG Miyares the next day whether that change, once adopted by the CDC, would require Virginia schoolchildren to receive a COVID-19 vaccine.

The AG's answer was no, and the reasoning was straightforward. CDC recommendations do not have the force of law; as the opinion puts it, "CDC recommendations . . . are not enforceable regulations having the force and effect of law," and the CDC itself acknowledges that "school-entry vaccination requirements are determined by state or local jurisdictions." Virginia attendance vaccine requirements come from Virginia law: the admission statute and § 32.1-46, which directs that the required vaccines be those set in the State Board of Health's immunization regulations and lists fifteen specific vaccinations at a minimum. COVID-19 is not among them, and the opinion holds that adding a vaccine requires either further General Assembly action or State Board of Health regulation.

The AG noted that the State Board of Health had already declined to add the COVID-19 vaccine to the required list, and that nothing in the relevant statutes requires the Board to incorporate CDC recommendations. The opinion's parallel is the flu vaccine: the CDC has long recommended annual influenza vaccination, but the Board has exercised its lawful discretion not to require it for school attendance. The same discretion applies to COVID-19.

A subtle point: § 32.1-46(A) directs parents to "cause" children to be immunized "in accordance with the Immunization Schedule developed and published by the CDC," which sounds like incorporation by reference. The AG read this as parental guidance, not as an attendance requirement, because the attendance requirements are separately enumerated in the statute and regulation. The CDC schedule cannot bootstrap itself into the required-for-school list without either legislative or Board action.

What this means for you

Virginia parents and guardians

The opinion holds that a CDC schedule change adding COVID-19 will not require a Virginia child to obtain the vaccine to attend a public or private elementary, middle, or secondary school, child care center, nursery school, family day care home, or developmental center. The required vaccinations are those enumerated in § 32.1-46 and the State Board of Health's regulations, and COVID-19 is not among them. The opinion is expressly limited to vaccination requirements imposed by state law and does not address whether a private school could set its own requirement by contract.

School administrators and childcare operators

The opinion holds that attendance vaccine requirements come from § 32.1-46 and the State Board of Health's regulations, not from the CDC schedule, which "does not have the force of law and is not binding." Adding COVID-19 to the CDC schedule does not change Virginia attendance requirements.

Public health officials

The opinion draws the line between recommendation and mandate: CDC and ACIP recommendations do not impose Virginia attendance conditions, and the opinion holds that a vaccine "other than those enumerated in the statute may be imposed as a condition of attending schools and childcare facilities only upon further legislative action by the General Assembly or through the State Board of Health by regulation."

State legislators

The opinion holds that the school vaccination list is controlled by § 32.1-46 and the State Board of Health, so a vaccine outside the enumerated list can be required only through legislative action or Board regulation. It does not recommend any particular change to the list.

Common questions

Q: Does Virginia require the flu vaccine for school attendance?
A: No. The CDC recommends annual flu vaccination, but the State Board of Health has not required it for school attendance. This is the closest parallel to the COVID-19 question.

Q: Does the opinion address religious or medical exemptions?
A: No. The opinion does not discuss exemptions. Its point is narrower: because COVID-19 is not on the required list at all, the question of an attendance requirement (and thus any exemption from one) does not arise.

Q: Can my private school require a COVID-19 vaccine even though state law does not?
A: The opinion does not answer that. It is expressly "limited to vaccination requirements imposed by state law as a condition of attending schools and childcare facilities," and so does not address a private school setting its own requirement through enrollment contracts.

Q: Did the State Board of Health consider adding COVID-19?
A: The opinion notes that the State Board of Health "previously declined to add the COVID-19 vaccine to the list of required vaccinations." The Board has independent authority to expand the list by regulation and has not done so for COVID-19.

Q: What if the federal government tries to require COVID-19 vaccination at federally funded schools?
A: That would be a federal action operating independently of state law. The opinion addresses Virginia attendance requirements only and does not address federal mandates, which would raise separate constitutional and statutory questions.

Background and statutory framework

The Virginia school immunization framework is a layered system. The General Assembly sets the requirements through § 32.1-46, which lists the vaccinations required at a minimum and directs that the required vaccines be those set in the State Board of Health's immunization regulations. The CDC's federal schedule is a separate document of recommendations that, as the opinion explains, does not itself translate into Virginia attendance requirements.

The opinion also makes a small but interesting point about statutory interpretation. Section 32.1-46(A) instructs parents to immunize "in accordance with the Immunization Schedule" published by the CDC. A simple reading might suggest that whatever the CDC schedule says becomes a Virginia requirement. The AG rejected that reading: the attendance requirements are separately and specifically enumerated, and the CDC reference is parental guidance, not incorporation by reference. This reading preserves Virginia legislative control over the actual school attendance requirements.

Citations and references

Statutes:

• Va. Code Ann. § 32.1-46 (required immunizations for school attendance)

Cases:

• George Mason Univ. v. Malik, 296 Va. 289 (2018) (status of agency guidance)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/22-058-Youngkin-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services

October 21, 2022

The Honorable Glenn Youngkin
Governor of Virginia
Office of the Governor
1111 East Broad Street
Richmond, Virginia 23219

Dear Governor Youngkin:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You relate that the Centers for Disease Control and Prevention (CDC), upon the October 20, 2022, recommendation of its Advisory Committee on Immunization Practices (ACIP), is poised to modify its childhood immunization schedule to include vaccination against COVID-19. You ask whether such a modification would require children enrolled in schools and childcare facilities in Virginia to obtain a COVID-19 vaccine as a condition of attendance. Your inquiry more specifically extends to attendance at a public or private elementary, middle or secondary school, child care center, nursery school, family day care home, or developmental center, but in this opinion I refer to these institutions collectively as "schools and childcare facilities."

Applicable Law and Discussion

As part of its authority to issue guidance with respect to public health, the CDC has adopted and published a schedule of immunizations recommended for children. The current schedule does not include COVID-19 vaccination, but ACIP recently voted to recommend that the CDC add COVID-19 vaccination to the list of recommended immunizations.

The CDC schedule is a series of recommendations only; unlike a statute or regulation, the schedule does not have the force of law and is not binding. Indeed, as this Office previously has noted, "CDC recommendations . . . are not enforceable regulations having the force and effect of law." Because the CDC schedule consists of nonbinding recommendations only, I conclude that it imposes no conditions on school attendance in Virginia. Indeed, the CDC itself acknowledges that it "only makes recommendations for use of vaccines, while school-entry vaccination requirements are determined by state or local jurisdictions."

Virginia law directs that "[n]o student shall be admitted by a school unless at the time of admission the student or his parent submits documentary proof of immunization." The General Assembly has provided that "[t]he required immunizations for attendance at a public or private elementary, middle or secondary school, child care center, nursery school, family day care home, or developmental center shall be those set forth in the State Board of Health Regulations for the Immunization of School Children." The General Assembly has directed further that those regulations include, at a minimum, fifteen specific vaccinations, as enumerated by statute. A vaccine other than those enumerated in the statute may be imposed as a condition of attending schools and childcare facilities only upon further legislative action by the General Assembly or through the State Board of Health by regulation. The State Board of Health previously declined to add the COVID-19 vaccine to the list of required vaccinations, and nothing in the relevant statutes requires the State Board of Health to incorporate CDC recommendations. Indeed, the CDC has long recommended that children receive an annual influenza vaccination, but the State Board of Health has exercised its lawful discretion not to require such a vaccination for school attendance.

The CDC childhood immunization schedule does not itself require anyone to obtain a vaccine in order to attend schools and childcare facilities; Virginia law, not the CDC, imposes vaccination requirements for attending such institutions. Virginia law does not condition attendance on obtaining a COVID-19 vaccine. I therefore conclude that the anticipated addition of COVID-19 vaccination to the CDC's childhood immunization schedule will not alter the legal requirements for attending schools and childcare facilities in Virginia, and it will not require any child to obtain a COVID-19 vaccination in order to attend schools and childcare facilities in the Commonwealth.

This opinion is limited to vaccination requirements imposed by state law as a condition of attending schools and childcare facilities. To attend schools and childcare facilities, state law requires only that children receive those vaccinations expressly enumerated in the statute or otherwise promulgated in the State Board of Health's regulations. It does not require that children receive every vaccination recommended by the CDC. The statutory provision that parents "cause" their children "to be immunized in accordance with the Immunization Schedule developed and published by the [CDC]" does not alter the analysis. Section 32.1-46(A). That provision does not impose any requirements for school attendance; all such vaccination requirements are expressly enumerated in the statute and the State Board of Health's regulations. Thus, for example, a child who has not received an annual influenza vaccination may attend school in Virginia notwithstanding that the CDC recommends that children receive annual influenza vaccinations precisely because the General Assembly and State Board of Health have elected not to require the influenza vaccination as a condition of school attendance.

Conclusion

It is my opinion that, should the CDC modify its recommended childhood immunization schedule to include vaccination against COVID-19, children enrolled in schools and childcare facilities in Virginia will not be required to obtain a COVID-19 vaccine as a condition of attendance.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General