NAICU Washington Update

New Federal Vaccine Requirements Will Affect Most Colleges and Universities

September 16, 2021

New federal COVID-19 prevention measures announced by President Biden last week are likely to impact a majority of colleges and universities. Specifically, at least three components of Biden’s ambitious COVID-19 plan – a vaccine or testing mandate for large employers, paid time off for workers who get vaccinated, and a vaccine mandate for federal contractors – affect the higher education sector. 

Under the first component of Biden’s plan, the president has directed the Department of Labor’s Occupational Health and Safety Administration (OSHA) to publish new rules that will require employers with 100 or more employees to mandate that their employees either be vaccinated or submit to weekly testing. Full details about the employer mandate will not be available until OSHA issues these rules. As a result, many questions about the new requirements will remain unresolved for the time being.  Two important outstanding issues include who will bear the cost for employees who opt for testing instead of the vaccine and whether Federal-Work Study participants will be counted as employees for purposes of determining if an institution of higher education meets the 100-employee threshold. 

Second, Biden’s plan also directs OSHA to publish a separate rule that will require employers with 100 or more employees to provide paid time off for workers to get vaccinated and to recover from any post-vaccination side effects. Both of the OSHA rules will be issued pursuant to the agency’s authority to issue emergency temporary standards when it determines that workers require protection from “grave danger.”

The third component of Biden’s plan is an Executive Order (EO) requiring federal contractors and subcontractors to implement COVID safety protocols. The EO delegates the authority for determining what those safety protocols will be to the Safer Federal Workforce Task Force, which must specify the protocols that will apply by September 24. It is highly likely that such protocols will include a vaccine mandate of some kind, though it is unclear whether there will be a testing alternative or whether additional requirements, such as masking or social distancing, will also be specified. 

The EO is effective immediately and applies to new federal contracts, with some limited exceptions. As a result, colleges and universities that enter into new federal research contracts are likely to be subject to the COVID-19 safety protocols. According to the text of the EO, the protocols will apply to employees of federal contractors and subcontractors who are “working on or in connection with” a federal government contract. 

Meanwhile, at least one lawsuit has already been filed against the employer mandate, and additional legal challenges to the various components of Biden’s plan are anticipated. The courts have generally upheld mandates for FDA-approved vaccines in the past, but it remains to be seen whether the expected litigation will slow, or even permanently halt, implementation of any of the new requirements.

NAICU will continue to monitor developments in this area and provide updates as new details emerge. 

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