President Biden’s recently announced COVID-19 action plan has a number of provisions that will impact colleges and universities in the coming weeks and months, although many of the specifics are still unknown.
The administration can take steps now to ensure government employees and members of the military are vaccinated, but other parts of the plan are subject to review, approval, and most likely legal challenge.
As of now, campuses need to be aware of the following three provisions:
First, an executive order directs the Safer Federal Workforce Task Force to draft guidance which will require all federal contractors, including colleges and universities, to mandate Covid-19 vaccines. The guidance, which is supposed to be published by Sept. 24, will spell out details of this requirement. It appears that colleges and universities with a new, renewed, or extended federal contract or “contract-like instrument” valued above $250,000 will be required to ensure that their employees and subcontractors “working on or in connection" with the contract be vaccinated.
At this time, it is difficult to anticipate the full scope of this guidance, such as the implications for remote, part-time, and student employees. While the administration has made clear that this does not apply to grants, we are waiting for clarification whether an institution’s program participation agreement (PPA) will be covered as a “contract” under the coming federal contractor vaccine mandate. Institutions must have a PPA in place to participate in federal student financial aid programs.
Second, the Occupational Safety and Health Administration (OSHA) is developing an Emergency Temporary Standard (ETS) to require all employers with 100 or more employees under OSHA’s jurisdiction “to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” This rule will include paid time off for employees to get vaccinated and recover from any post-vaccination symptoms. OSHA has jurisdiction over private sector employers, and in 26 states its protections extend to state and local government employees.
OSHA said it plans to publish the ETS in the Federal Register in the next few weeks. For covered private sector employers, the ETS will become effective immediately. States with OSHA-approved occupational safety and health plans covering public employees must adopt the ETS or a standard at least as protective within 30 days of publication. OSHA reportedly could impose fines of nearly $14,000 per violation for employers that do not comply.
Details regarding OSHA’s ETS are uncertain, such as who pays for the required employee testing, whether student employees are covered, and which vaccines will satisfy the ETS.
Third, the plan calls on the Centers for Medicare and Medicaid Services to require vaccination for workers and volunteers in most healthcare settings that receive Medicare or Medicaid reimbursement, including teaching hospitals. This requirement will likely extend to individuals who are not directly involved in patient care.