Can Virginia parents still use the religious exemption to skip childhood vaccines during the COVID-19 pandemic?

Plain-English summary

Delegate Nick Freitas asked whether the COVID-19 pandemic could be used to override the religious-exemption provision in Virginia's childhood-immunization statute. The exemption (§ 32.1-46(D)(1)) allows parents to opt their children out of required school-entry vaccinations on religious grounds, "unless an emergency or epidemic of disease has been declared by the Board."

The AG concluded that the exemption remains in effect during the COVID-19 pandemic. The reasoning is narrow: § 32.1-46(A) requires immunizations on the CDC/ACIP schedule for school attendance. COVID-19 is not on that required childhood schedule (as of the opinion date). The statute's "unless an emergency or epidemic" clause only suspends the exemption when the epidemic is "directly related to" a required vaccine-preventable disease, the kind of disease the required vaccines actually prevent. Because the COVID-19 vaccine is not on the school-attendance schedule, COVID does not qualify under that clause. The Health Department's own regulations (12 VAC § 5-110-80) reflect the same reading: students can be excluded from school during an outbreak of a vaccine-preventable disease the school requires.

Because the exemption stays in place, parents using it cannot be prosecuted under § 32.1-27 for failing to immunize their children.

What this means for you

For Virginia parents with a religious objection to childhood vaccines

The opinion holds that the COVID-19 emergency did not suspend the religious exemption, because COVID-19 was not a required childhood immunization at the time. The exemption is claimed through the notarized Certificate of Religious Exemption (Form CRE 1) described in the regulation. The opinion notes the exemption operates per disease: under 12 VAC § 5-110-80, a religiously exempt student may still be excluded from school during an outbreak of a vaccine-preventable disease on the required schedule. That exclusion is a temporary attendance measure, not the criminal penalty in § 32.1-27.

For school administrators

The opinion holds that parents using the religious exemption are not subject to prosecution under § 32.1-27 when the epidemic is not directly related to a required vaccine-preventable disease. It treats the Form CRE 1 affidavit as the mechanism the statute and regulation provide for claiming the exemption.

For public health officials

The opinion reads the statute's "unless an emergency or epidemic" clause as suspending the exemption only when the epidemic is directly related to a disease on the required immunization schedule. It notes that if the Board of Health were to add COVID-19 to the required childhood schedule under § 32.1-46(A), the analysis could change; as of the opinion date, that had not happened.

Common questions

Q: I have a religious objection to vaccines. Can my child still attend Virginia public school during COVID-19?
A: Per this 2021 opinion, yes. The religious exemption under § 32.1-46(D)(1) was not suspended by the COVID-19 emergency, because COVID-19 is not a required childhood vaccine. File the notarized Form CRE 1 with the admitting school official.

Q: Could the state require a COVID-19 vaccine for school children?
A: Only if the Virginia Board of Health adds it to the required immunization schedule under § 32.1-46(A). The opinion was issued before any such action. If COVID-19 is later added, the religious-exemption analysis would still apply on its own terms, but the "epidemic" exception in § 32.1-46(D)(1) might also come into play.

Q: What is Form CRE 1?
A: It is the notarized Certificate of Religious Exemption under 12 VAC § 5-110-80, an affidavit stating that immunization conflicts with the student's religious tenets or practices.

Q: Can my child be excluded from school during a measles outbreak even with the religious exemption?
A: Yes. Section 32.1-46(D)(1) and the regulation allow exclusion of religiously exempted students during an outbreak of a vaccine-preventable disease they are unvaccinated against. That is temporary attendance exclusion, not criminal prosecution.

Q: What about the medical exemption?
A: Section 32.1-46(D)(2) provides a separate medical exemption requiring physician certification. This opinion does not address medical exemptions; it focuses only on the religious exemption.

Citations and references

Statutes and regulations:

• Va. Code § 32.1-27 (Penalty)
• Va. Code § 32.1-46 (Immunization required; exemptions)
• 12 Va. Admin. Code § 5-110-80 (Religious exemption regulation)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: http://www.oag.state.va.us/files/Opinions/2021/20-057-Freitas-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
Mark R. Herring
Attorney General

December 30, 2021

The Honorable Nicholas J. Freitas
Member, House of Delegates
210 North Main Street
Culpeper, Virginia 22701

Dear Delegate Freitas:

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

Issues Presented

You ask whether a public health emergency, like the COVID-19 pandemic, affects the religious exemption from mandated childhood vaccines and whether parents who use the religious exemption are subject to prosecution while a public health emergency is in effect.

Applicable Law and Discussion

Section 32.1-46(A) requires certain immunizations for children

in accordance with the Immunization Schedule developed and published by the Centers for Disease Control and Prevention (CDC), Advisory Committee on Immunization Practices (ACIP), the American Academy of Pediatrics (AAP), and the American Academy of Family Physicians (AAFP). The 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 statute, however, exempts children from the vaccination requirement where their parents or guardians object "on the grounds that the administration of immunizing agents conflicts with his religious tenets or practices, unless an emergency or epidemic of disease has been declared by the Board." The Virginia Department of Health has promulgated regulations in accordance with this statute. The regulation provides that students or their parents or guardians must "submit[] a notarized Certificate of Religious Exemption (Form CRE 1), to the admitting official of the school to which the student is seeking admission. Form CRE 1 is an affidavit stating that the administration of immunizing agents conflicts with the student's religious tenets or practices."

It is my opinion that the religious exemption for childhood immunizations remains in place during an epidemic, like the COVID-19 public health emergency, because there is currently no requirement for childhood immunization with a COVID-19 vaccine. The only reasonable interpretation of § 32.1-46(D)(1) is that the public health emergency or epidemic does not remove a parent or guardian's ability to request a religious exemption from the childhood immunizations in § 32.1-46(A) unless the epidemic is directly related to the vaccine-preventable disease. The Health Department's regulations are consistent with this interpretation and allow for the exclusion of students from schools "[u]pon the identification of an outbreak, potential epidemic, or epidemic of a vaccine-preventable disease in a public or private school."

As the religious exemption would remain in place under the scenario your question presents, it is my opinion that a parent or guardian would not be subject to prosecution under § 32.1-27 for failure to comply with the immunization requirements of § 32.1-46.

Conclusion

The religious exemption for childhood vaccinations contained in § 32.1-36(D), in my opinion, remains applicable during an epidemic unless the epidemic is directly related to a required vaccine-preventable disease. Parents or guardians choosing to obtain a religious exemption would not be subject to the penalties prescribed in § 32.1-27 for failure to immunize their children with the vaccines outlined in § 32.1-36.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General