SUNY requiring vaccine adds to state clash over separating the unvaccinated. What's next

David Robinson
New York State Team

Two very different versions of a post-COVID-19 pandemic world have emerged in New York state as authorities pursue plans for separating people based on vaccination status in certain circumstances.

For those vaccinated, life will soon once again include jam-packed concerts, fans crammed into baseball stadiums and other raucous celebrations filling large outdoor venues.

For the unvaccinated, however, it will feature occupancy limits at venues and social distance rules that have kept people at least six feet apart to limit the spread of coronavirus over the past year.

Those refusing to get vaccinated will also be barred from taking in-person classes this fall at public colleges and universities in New York, pending full federal approval of the vaccines, Gov, Andrew Cuomo said Monday.

The growing divide stemmed from new state directives allowing specialized treatment of vaccinated people. At large outdoor venues, for example, that includes creating special areas without social-distancing requirements for vaccinated attendees, beginning May 19. Mask wearing would still be required at all venues.

Starting May 19, New York will allow sections of vaccinated fans to be occupied at 100% capacity without social distancing. It's a different story for unvaccinated sections.

While some vaccine skeptics decried the measures as government overreach, health experts called them useful tools in a push to boost vaccination rates, as waning demand for shots threatens to extend the pandemic indefinitely.

“I like the idea of incentivizing consequences of personal choices,” said Dr. Gregory Poland, director of the Mayo Clinic's Vaccine Research Group, comparing the unvaccinated seating areas to bygone smoking sections in restaurants.

“There were consequences of a smoker choosing to smoke that impacted other people,” he said. “I have a problem when your choice is divorced from the consequences of your choice on others.”

Yet politically charged battles over COVID vaccine-related separation have erupted nationally, as the focus turns to businesses, colleges and governments pursuing provisions to require vaccinations under a variety of scenarios.

Meanwhile, New York has a unique history of legal challenges to efforts that limited access to public places based on measles outbreaks and school vaccinations, which offered insights into the potential clashes over COVID-19 vaccinations.

“I’m less concerned about the separation than I am about the exclusion,” said Michael Sussman, an Orange County civil rights attorney, referring to access to public and private spaces for unvaccinated people.

“As a legal matter, the ultimate issue is the exclusion,” he added.

Further, the stakes of recent government policies reach far beyond the coming months, as experts increasingly believe the country will struggle to reach herd immunity and face seasonal battles against an endemic COVID-19.  

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Will all NY colleges require COVID vaccines

Edelawit Yishak and Catherine Morgan, freshman at Manhattantville College in Purchase, walk on campus April 6, 2021. Manhattanville College has notified students that they will need to have the COVID-19 vaccine in order to return to campus next Fall.

In the latest development, Cuomo on Monday announced the vaccine mandate for all students taking in-person fall classes at the State University of New York and City University of New York systems, pending full federal approval of the shots.

Currently, three COVID-19 vaccines have been granted emergency use authorization, which allows for distribution prior to the U.S. Food and Drug Administration finalizing a standard review. The Pfizer-BioNTech vaccine on Friday became the first to apply for the full approval, but the timeline remains unclear.

The new vaccine policy aims to build upon policies at a handful of private colleges, including Cornell University, Manhattanville College and Ithaca College, that will require students get vaccinated against COVID before retuning in the fall.

Further, new legislation seeks to require COVID-19 vaccinations for all students attending public and private colleges in New York state.

“Since 1991, New York law has required all students taking in-person classes to be immunized against measles, mumps and rubella,” state Sen. Brad Hoylman, D-Manhattan said in a statement Friday introducing the bill.

“By extending this immunization requirement to COVID-19, we will be taking action to help ensure none of our universities become COVID-19 hot spots again,” he added.

Throughout the fall and spring semesters, COVID-19 infections on college campuses prompted numerous temporary lockdowns. SUNY Oneonta sent students home for remote learning due to a largescale outbreak in the fall.

What to know about COVID, measles and vaccines

People enter the Refuah Health Center in Spring Valley Oct. 18, 2018. Amid the largest outbreak of Measles in Rockland County in the last twenty years, residents are being encouraged to check their vaccination status and get the measles vaccine in not already immune.

The most recent high-profile court cases related to vaccines in New York unfolded in 2019, as a state law ended religious exemptions for school immunizations and measles outbreaks struck Rockland County and New York City.

Sussman represented parents who successfully challenged Rockland County’s emergency deceleration that sought to bar children who are unvaccinated against measles from schools, places of worship and other public areas.

He also represented parents in a high-profile lawsuit that attempted to reinstate the religious exemptions to vaccination for students, with state and federal judges upholding the state law.

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Sussman described debate over the COVID-19 vaccines as different in part because the shots are given under emergency use authorization.

“If the vaccinations are experimental, that’s going to be the only level the court is going to have to consider,” he said, asserting other mandates upheld by courts involved fully approved vaccines.

Still, Sussman anticipates the move to bar unvaccinated students from in-person classes at public colleges and universities will draw legal challenges, even if the the vaccines are fully approved.

"The vaccination cannot be a sword that is used to exclude people from public places," he said.

Poland, who is also an Infectious Diseases Society of America expert, agreed COVID-19 vaccine mandates should await full approval but noted, if granted, history is full of examples of courts and society supporting the approach.

“We’ve accepted that through a whole host of things that collectively recognize the greater good,” he said.

Meanwhile, more than 245 million doses of COVID-19 vaccines had been administered between December and May 3, with the only serious fatal adverse reactions involving rare blood clots connected to the Johnson & Johnson vaccine, according to the Centers for Disease Control and Prevention.

Out of nearly 8 million people who received the J&J vaccine, 15 people had developed the blood clot condition and three had died as of late April when regulators lifted a pause on its use.

Vaccine rules for public, private places

White Plains High School students receive their first COVID-19 vaccination at a clinic set up in the library of White Plains High School on Tuesday, May 4, 2021.

One key issue for ongoing debates over COVID-19 vaccines involves the difference between imposing restrictions on unvaccinated people in public places and privately-owned businesses.

For example, employers across the country are considering the fallout of requiring workers be vaccinated before returning to the office, as restaurants, sports leagues and other venues consider limiting access to vaccinated people.

Sussman said, in most cases, the private businesses can deny access for a range of reasons, including vaccination status.

“The Constitution, the First Amendment does not apply to private actors the same way it applies to public entities,” he said.

“If Yankee Stadium says no Red Sox banners, they’re allowed to do that,” he said, adding laws still prohibit discriminating against people based on race, disability and other protected characteristics.

Meanwhile, lawmakers in more than 40 states across the country are also currently debating legislation that would forbid mandates requiring people get vaccinated.

Most of the bills seek to prohibit businesses from requiring employees to be vaccinated against the coronavirus or limit school and day care vaccination entry requirements. Some supporters also reject attempts to deny unvaccinated people access to sports venues and concerts.

Prior to Monday, the issue of COVID-19 vaccine mandates drew limited attention in New York aside from a bill introduced in December seeking to allow for mandates in certain situations.

In contrast, Cuomo on Monday proposed state lawmakers pursue legislation to stop discrimination against people who get vaccinated against COVID-19, citing unspecified summer camps denying access to vaccinated children and staff.

"I understand the anti-vaccine argument. In my opinion, there is no science to it. There is no science to it," Cuomo said during a press briefing.

"You can have a theory, you can have a belief, but you can't use that to make public policy without science and without data," he added.

USA TODAY contributed to this report.

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David Robinson is the state health care reporter for the USA TODAY Network New York. He can be reached and followed on Twitter:@DrobinsonLoHud