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President Biden speaking Sept. 27

Kent Nishimura/Los Angeles Times/Getty Images

Pennsylvania State University announced this week that it would require all employees at its flagship University Park campus to submit proof of vaccination against COVID-19 vaccination by Dec. 8 to comply with President Joe Biden’s order mandating vaccination for federal contractors.

More than 700 universities have already announced vaccine mandates for employees, according to a tracker maintained by The Chronicle of Higher Education. But Penn State -- which previously had resisted mandating COVID-19 vaccination for employees or students -- may be among the first institutions to link an employee vaccination mandate to Biden’s Sept. 9 order requiring vaccination for federal contractors.

The requirement for federal contractors, which allows for exemptions on medical or religious grounds, has expansive implications for universities that hold contracts with the U.S. government.

Peter McDonough, vice president and general counsel for the American Council on Education and lead author of an issue brief on this topic, said it “potentially affects all corners of campus even if somebody working in a particular office or building wouldn’t themselves ever be thought of as supporting federal contract work on that campus. The guidance is intended to essentially say, ‘If there’s any chance whatsoever that someone on campus can come into contact with someone who is working directly or indirectly on a federal contract, that person needs to be vaccinated as well.’”

Specifically, federal guidance issued Sept. 24 says the order applies to full-time or part-time employees “working on or in connection with a covered contract,” including “employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review.”

The guideline also applies to employees located in the same facility as an individual working on or in connection with a federal contract “unless a covered contractor can affirmatively determine that none of its employees on another floor or in separate areas of the building will come into contact with a covered contractor employee during the period of performance of a covered contract. This would include affirmatively determining that there will be no interactions between covered contractor employees and non-covered contractor employees in those locations during the period of performance on a covered contract, including interactions through use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.”

“Imagine a campus with a central parking garage and then they go off to 10 different buildings, only one of which has any federally supported contract work, but everyone parks in that garage,” McDonough said. “Because you cannot guarantee that everyone in that garage that is heading to the building that houses federal contracting work will never come in contact with anybody else in that garage that’s heading elsewhere, you’ve got to have this requirement apply to the entire campus because they’re all going in and out of that garage. There’s no other reasonable way to apply it.”

Penn State came to just such a determination.

“For all practical intents and purposes, it has become evident that we must extend the mandate to all employees at University Park,” Penn State president Eric J. Barron said in a press release announcing the requirement. The press release notes that the University Park campus has about 1,000 federal contracts, collectively valued at more than $500 million.

Penn State said the requirement applies to all employees at the University Park campus, including full-time and part-time faculty and staff, even if they are working remotely, as well as to all students supported on graduate assistantships and to undergraduate and graduate students on Penn State’s payroll.

The requirement may be rolled out at other campuses soon. Penn State has 24 campuses statewide.

“While the great majority of federal contracts impact the University Park campus, we are closely reviewing the Biden administration’s mandate and how it may apply to employees at other campuses and locations, as other parts of the University also receive government support,” Barron said. “So we are strongly urging all of our employees across the commonwealth to start the vaccination process now, if they have not already done so.”

Cornell University, which already had a vaccine mandate for employees at its campuses in Ithaca and Geneva, N.Y., similarly cited the “scope of the executive order” in announcing Oct. 6 that it would now “require all employees, whether they work on campus in Ithaca, Geneva, New York City, or any other location, to be fully vaccinated against COVID-19 by December 8, or to have obtained a university-approved medical or religious exemption.”

While many other universities have not yet announced similar requirements, McDonough said, “Any college or university that is a federal contractor fits expressly within these requirements and will be implementing procedures to abide by them -- there seems little doubt of that.” 

Under the federal guidance, covered contractor employees must be fully vaccinated by Dec. 8, which means their last day to receive the second dose of a two-dose regimen would be Nov. 24.

Some states have laws or gubernatorial orders in place prohibiting universities from requiring COVID-19 vaccination. The ACE brief notes that “the guidance says that the federal requirements supersede any contrary state or local law or ordinance. Whether, how, and when a state or local government could block or interfere with an institution’s compliance with these federal contractor COVID-19 requirements remains to be seen.”

McDonough said the U.S. Constitution’s Supremacy Clause “provides that federal law is ‘the supreme Law of the Land,’ notwithstanding any state law to the contrary. But implementing that is where the challenge is and where the opportunities for challenge are.”

Dorit Rubinstein Reiss, a professor at University of California Hastings College of the Law who studies vaccine law and policy, seconded that point.

“It’s very clear if there’s a valid federal rule, it trumps state law on this,” she said. “The question will be, is this a valid federal rule?”

“A university in a state that doesn’t allow universities to mandate vaccines could leverage this to challenge the state,” Reiss said, “but there would be a political cost, and universities may be hesitant to step into that.”

In addition to requiring COVID vaccination, Biden’s Sept. 8 order also stipulates that employees of covered federal contractors, and visitors to the contractors’ facilities, must comply with Centers for Disease Control and Prevention guidance on masking and physical distancing.

Apart from the federal contractor rule, colleges are awaiting a separate promised rule from the Biden administration that will require employers with 100 or more employees to ensure employees are fully vaccinated or tested for COVID weekly.

White House press secretary Jenn Psaki said Wednesday that the “initial text” of the planned rule had been submitted to the Office of Management and Budget for review. She declined to give a timeline for when the review will be completed but said the proposed rule would be published in the Federal Register upon completion.

In announcing the mandates Sept. 9, Biden described a goal of drastically increasing the percentage of the workforce that’s vaccinated against COVID-19.

“The bottom line: we’re going to protect vaccinated workers from unvaccinated co-workers. We’re going to reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America.”

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