vaccination mandate for federal contractors, which applies in most higher education institutions, so far prevails over contrary state laws | Akin Gump Strauss Hauer & Feld LLP

[co-author: Jehanne McCullough]

President Biden Executive Order 14042 (EO 14042) requires employees of covered federal contractors to be fully immunized against COVID-19 by January 18, 2022, if they are not entitled to housing due disability or religion. Since many colleges and universities have contracts with the federal government, they will need to require their employees to comply with the federal vaccination mandate and, in many cases, have already announced their intention to do so. Whether certain employees of these colleges and universities count as covered employees and are subject to the terms of reference must be determined on a case-by-case basis. But the mandate is broad in scope and probably applies to many, if not all, employees. Covered employees generally include those who work on or in connection with the covered contract and others who work at a covered subcontractor workplace even if they are not working on the contract itself. Employee work related to human resources, billing and legal review is considered contract work.

Some states have responded to the federal mandate by proposing and implementing new state laws, which either prohibit or make more stringent vaccination requirements. For example, Tennessee passed SB 9014, which does not allow public post-secondary institutions to require people to provide proof of vaccination if they choose not to be vaccinated for any reason. Texas Governor Greg Abbott signed an Executive Order, GA-40, which created additional exceptions for employees who oppose vaccination, going beyond the exceptions allowed by the federal mandate.

The actual conflicts between the federal mandate and certain state laws present a challenge for colleges and universities caught between federal laws and state laws. The federal mandate, of course, clearly states that it supersedes any contrary state law. Likewise, the supremacy clause provides a basis for colleges and universities to ignore conflicting state law to the extent necessary to adhere to the federal mandate.

The fate of the federal mandate remains uncertain, however. Unlike the Occupational Safety and Health Administration’s temporary emergency standards on COVID-19 vaccines that apply to employers with 100 or more employees, which have been temporarily interrupted by Circuit 5, the vaccine mandate for contractors federal government is, to this day, still enforceable. However, many states have challenged the federal mandate. At the time of writing, these states include Alabama, Alaska, Arizona, Arkansas, Georgia, Florida, Idaho, Iowa, Kansas, Kentucky, Missouri , Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming. If a nationwide preliminary injunction is granted, the federal mandate will no longer be enforceable and will not prevail over conflicting state laws for at least an interim period. Colleges and universities that have contracts with the federal government should be prepared for the possibility of the federal mandate being interrupted and they may need to comply with contrary state laws in the near future for at least a period of time. time.

Employers should carefully monitor the progress of any pending state legislation and legal challenges to OE 14042, and be prepared to make any operational adjustments caused by new laws or successful challenges to the vaccine mandate.


Source link

Comments are closed.