Vaccination Mandate for Federal Contractors, which Applies in Most Higher Education Settings, Preempts Contrary State Laws for Now

Akin Gump Strauss Hauer & Feld LLP
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Akin Gump Strauss Hauer & Feld LLP

[co-author: Jehanne McCullough]

President Biden’s Executive Order 14042 (EO 14042) requires covered federal contractor employees to be fully vaccinated against COVID-19 by January 18, 2022, if they are not entitled to an accommodation due to disability or religion. Because many colleges and universities have covered contracts with the federal government, they will need to require that their employees comply with the federal vaccination mandate, and, in many cases, have already announced their intentions to do so. Whether certain employees of these colleges and universities count as covered employees, and are subject to the mandate, must be determined on a case-by-case basis. But the mandate has a broad scope and likely 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 contractor workplace even if they do not work on the contract itself. Employees’ work related to human resources, billing and legal review counts as work in connection with the contract.

Some states have responded to the federal mandate by proposing and implementing new state laws, which prohibit vaccination requirements or make them narrower. For example, Tennessee passed SB 9014, which does not allow public postsecondary educational institutions to compel 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, that created additional exceptions for employees who object to vaccination, going beyond the exceptions allowed by the federal mandate.

Actual conflicts between the federal mandate and certain state laws present a challenge for those colleges and universities caught between dueling federal 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 a conflicting state law to the extent necessary to adhere to the federal mandate.

The fate of the federal mandate, however, remains uncertain. Unlike the Occupational Safety and Health Administration’s emergency temporary standards on COVID-19 vaccines that apply to employers with 100 or more employees, which have been temporarily halted by the 5th Circuit, the vaccine mandate for federal contractors is, as of today, still enforceable. However, numerous states have challenged the federal mandate. At the time of publication of this post, 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 preempt contrary state laws for at least an interim period. Colleges and universities that have covered contracts with the federal government should be prepared for the possibility that the federal mandate may be halted and that they may need to comply with contrary state laws in the near future for at least some period of time.

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

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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