PSU is mandating employees get vaccinated due to an executive order. What are other colleges doing?
Although Penn State announced last week it would mandate the COVID vaccine for employees to comply with an executive order, numerous other universities — in the Big Ten and around the country — are still debating their next move.
For colleges and universities that already have vaccine mandates in place, little must change in response to President Joe Biden’s Sept. 9 order effectively requiring all federal contractors to be vaccinated. But those still without mandates — and with hundreds of millions in federal contracts — are scrambling over what to do next. Some are still trying to confirm how the executive order applies, others are still figuring out implementation, and some might be weighing whether to challenge the order in court.
Even the Association of American Universities (AAU), an organization of 66 leading research institutions across the U.S. and Canada, acknowledged it’s become an issue among many of their American members.
“The AAU, along with many of its members, are trying to get the details right because the details are really what matters,” said Pedro Ribeiro, AAU’s vice president of communications, adding disagreement between some states and the federal government hasn’t helped.
Biden issued two pandemic-related executive orders Sept. 9, including one that required certain government contractors to comply with future COVID-19 safety protocols from the Safer Federal Workforce Task Force. On Sept. 24, that task force released 14 pages of guidance that essentially mandated the vaccine for contractors by Dec. 8.
The nuances of the guidance have led to plenty of questions, although a White House official confirmed to the Centre Daily Times that universities remain subject to the aforementioned order. Penn State’s University Park campus, for instance, boasts about 1,000 federal contracts valued at more than $500 million. And the protocols outline that even employees not directly working on a federal contract must be included in the mandate, unless the university can guarantee that unvaccinated employees will not come into contact with the vaccinated staff working on the federal contracts, even in common areas like elevators, cafeterias, parking garages, etc.
“Because the university cannot be sure that covered employees will not interact with unvaccinated employees ... the university determined that it was prudent to make compliance with the executive order,” Penn State spokesman Wyatt DuBois said in a written statement.
Smaller schools might be able to better separate the vaccinated from the unvaccinated, and smaller contracts (less than $250,000) don’t trigger the mandate. But due to other variables — one Iowa official wondered aloud if unvaccinated students might be a problem for contractors — universities have been slow to act.
The University of Delaware, from Biden’s home state, was one of the first to react to the executive order. UD announced Oct. 8 it would mandate the vaccine for employees, and Penn State followed closely behind with an Oct. 12 announcement. But even Penn State didn’t have all the answers last week, as it only announced Tuesday afternoon that its mandate would also apply to six commonwealth campuses. It also did not immediately have a process available for those seeking medical or religious exemptions.
None of the four other Big Ten universities without previous mandates — Iowa, Nebraska, Purdue and Wisconsin — have yet announced any kind of employee mandate.
“At the University of Nebraska System, which includes the University of Nebraska-Lincoln, our flagship Big Ten institution, we are continuing to review the executive order and discuss what steps we will need to take going forward,” spokesperson Melissa Lee told the CDT late last week. “We don’t have anything new to share just yet.”
Said Purdue spokesperson Tim Doty: “We are still awaiting guidance on this.”
Because employees who fall under the executive order are required to be fully vaccinated by Dec. 8, and because one is not considered fully vaccinated until two weeks after the final dose, that means Nov. 24 is effectively the final day to get the last shot. That doesn’t leave much wiggle room for universities to take action.
Michael LeRoy, an expert in labor law and labor relations at the University of Illinois, told the CDT that universities who fail to comply likely won’t see their federal contracts immediately terminated. But they could see lower-scale sanctions, such as a notice of intent to pause said contracts, before more extreme sanctions such as debarment, or excluding from federal contracts. The American Council on Education also explained in an issue brief that the latter could be a possibility.
For states that oppose mandates — 12 so far have banned them — following the executive order becomes much trickier. And that’s why LeRoy believes this issue could be headed for the courts.
“It’s almost unprecedented to have the federal government and state governments at this level of direct conflict,” he said. “And there is not a clean resolution because states fund public institutions, and the federal government funds public institutions — and so each level of government has leverage over the campuses, and so the campuses are caught in the middle of the crossfire.
“The obvious implication is it’ll just have to be litigated. But a disturbing implication is that schools might have to make a choice about preparing to pause or terminate federal contracts that are vital to their research mission in order to placate state officials. ... The end game, frankly, is with the federal judiciary.”
McClatchy White House correspondent Bryan Lowry contributed reporting
This story was originally published October 19, 2021 at 10:45 AM.
