Vaccinations and the Religious Exemption

While vaccination is a hot political topic, it is largely settled as a matter of law. Ever since the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, state governments have possessed the authority to enforce mandatory vaccination laws. Courts have long recognized that States are not required to provide religious exemptions to these vaccination mandates, though most do. The Supreme Court recently denied [the opportunity to review] a Second Circuit case that rejected [constitutional] challenges to a vaccination requirement, indicating that the High Court does not plan to change its stance on the constitutionality of compulsory vaccination anytime soon.

Marie Killmond, Why Is Vaccination Different? A Comparative Analysis of Religious Exemptions, 117 Colum. L. Rev. 4 (2017).

To understand school policies on religious exemptions, we turn to state law.

According to the Pew Research Center, “Every state allows exemptions for children who cannot be vaccinated for medical reasons.” Pew explains: “While all states require children to receive certain vaccinations before they can enter public school, most states offer nonmedical exemptions to those requirements.”

Specifically, “46 states currently allow children to be exempt from vaccinations due to religious concerns, including 17 states that also allow exemptions for ‘personal reasons.’” A mere three states -- California, Mississippi, and West Virginia -- do not accept religious or other non-medical exemptions to vaccination requirements.

The National Conference of State Legislatures has an overview of which states allow religious and philosophical exemptions: Click here to view the list. Some state statutes apply to public and private schools, while others only apply to state-funded institutions.

What about summer camps?

In a 2018 letter to Camp Operators, the New York Department of Health “strongly recommends” that all camp staff and campers be fully immunized. The Department of Health notes that the prolonged close contact of individuals at camp can promote the spread of vaccine-preventable diseases.

“Within the last ten years,” the letter goes on, “there have been three mumps outbreaks that began in summer camps in New York State; one outbreak resulted in more than 3,500 cases of mumps; another mumps outbreak involved multiple camp staff.” And this was written before the current measles crisis in New York.

In light of heightened risks, can camps turn away unvaccinated kids? Or are they bound to honor religious exemptions like so many schools?

Camps are often misunderstood by state legislatures, and the laws concerning camps and vaccination requirements are sometimes unclear. To understand the challenge, let’s take Pennsylvania as an example.

The words “immunization” and “vaccination” don’t appear in Pennsylvania’s camp code. The camp code’s silence could mean that camps are free to make their own determination regarding vaccination policies.

Pennsylvania does have a religious exemption for immunizations in “child care group settings,” which are defined as “premises in which care is provided at any one time to four or more children, unrelated to the operator.” (Read statute here.) At first glance, overnight camps fall within that definition. However, the statute does not apply to “Children attending kindergarten, elementary school or a higher school who are 5 years of age or older.” While the statute might apply to day camps, it doesn’t apply to overnight camps, where the youngest campers are older than 5.

According to the statute, kids over the age of 5 are subject to the requirements of 22 Pa. Code § 23.81, which addresses immunizations in schools. In Pennsylvania schools (both public and private), students can be exempt from vaccination requirements under medical and religious grounds (read statute here). However, the definition of “schools” doesn’t include camps, leaving us to refer back to the camp code, which doesn’t mention immunizations.

This is likely why the American Camp Association recommends that camps speak to an attorney about whether school vaccination laws in a particular state apply to camps. It would take a deep dive into a particular state’s laws to properly answer that question. While Pennsylvania has been silent, New Jersey has specifically said that they apply the same laws to camps as they do to schools -- meaning, camps must accept religious exemptions. So different states can have very different approaches to this question.

What about medical exemptions under the ADA and analogous state laws?

Of course, this article is about the religious exemption, but we should note that the Americans with Disabilities Act and many state public accommodation laws require reasonable accommodations for campers with disabilities. While certain types of entities are exempt, many camps are not. So if a camper with a disability cannot be vaccinated for medical reasons, then a camp may be obligated to provide a vaccine exemption as an accommodation. To see more about ADA requirements, you can read this post: camplawandfinance.com/post/understanding-the-ada.

Conclusion

Where state laws are silent or unclear on religious exemptions, some camps share the following sentiment of a commenter to a Facebook post on this topic: “Decide if you want your camp to be a possible catalyst for a measles outbreak in your community. The answer to that question will lead you in the right direction. Anyone who doesn't like your answer and associated policy will go elsewhere.”

Camps that decide to mandate vaccinations can also take comfort in the fact that they are in good company. Some of the largest, most respected camps in the industry require vaccinations and do not accept religious exemptions. To the extent the law is silent on this topic, industry practices are certainly informative. But of course, this approach also entails some risk and could be challenged.