Contracted Into a Vaccine: Arizona Universities To Enforce Federal COVID-19 Vaccination Mandates

By Zach Levy.

Introduction

            COVID-19 vaccines have been widely available for almost a year. On August 23, 2021, the U.S. Food and Drug Administration (FDA) approved the first COVID-19 vaccine for individuals of 16 years of age and older. The Centers for Disease Control and Prevention (CDC) widely recommends the vaccination as a preventative measure, along with wearing masks indoors, hand washing, and social distancing. However, public concerns persist. Nearly 20% of U.S. adults say they do not intend to be vaccinated. In Arizona, only 52% of the population is fully vaccinated despite statewide efforts and the recent rollout of booster shots. Recent federal developments are sure to change these numbers in the near future.

Executive Order: Safety Protocols for Federal Contractors

            On September 9, 2021, President Joe Biden signed an executive order requiring all employees of federal contractors to receive COVID-19 vaccinations. The order seeks to promote economy and efficiency in the federal procurement by ensuring that parties that contract with the federal government adequately safeguard their workers from COVID-19. It maintains that it will decrease the spread of COVID-19, thereby decreasing worker absence, reducing labor costs, and improving the efficiency of work performed for the federal government.

            In accordance with the order, on September 24, 2021, the White House Safer Federal Workforce Task Force (the “Task Force”) released guidance to federal contractors and subcontractors on compliance with the order. The Task Force set a December 8, 2021 deadline for covered contractor employees to be fully vaccinated (with limited exceptions). Covered contractors must designate someone to coordinate the implementation of the guidance and ensure its compliance.

            Further, Section 2(a) of the executive order calls for a contract clause to be incorporated in all contractor and subcontractor contracts ensuring compliance with Task Force guidance. On September 30, 2021, the Federal Acquisition Regulatory (FAR) Council released a memorandum on implementing the mandate. Included in the memo is a clause to support agencies in meeting the applicability requirements and deadlines set forth in the order. The clause is to be included in contracts awarded prior to November 14, 2021, solicitations issued before October 15, 2021, and a multitude of other contracts not covered by the order.

            While the executive order and the Task Force guidance do not apply to all contractors, they do impose new compliance obligations on many actors, including businesses that sell to the federal government, hospitals and healthcare facilities, hotels, financial institutions, and colleges and universities. The order not only applies to employees working on or in connection with a covered federal contract, but also to all other employees that share workplaces with such employees or come into contact with them as part of their employment.

            President Biden’s order has been met with confusion. Many covered employees are still unsure of the details of the requirement or how to comply. Their confusion is well-founded, as much is still not known about how the executive order or guidance will be implemented. The guidance attempts to mitigate its own obscurity through a FAQ section, but some find additional direction necessary.

Action in the Valley

            While uncertainty looms among many employers, Arizona’s universities have been quick to voice their adherence. The Arizona Board of Regents, the governing body for Arizona’s three state universities, said the schools will require COVID-19 vaccinations for all employees, including student workers, graduate assistants, and associates. As implementation of the order begins in Arizona, the University of Arizona has already received amended federal contracts with a clause similar or identical to that recommended by the FAR.

            The University of Arizona, Arizona State University, and Northern Arizona University receive hundreds of millions of dollars annually in federal funding from grants and contracts. This funding is critical to the universities’ research, employment, and education efforts. It is also key to the universities’ missions and goals to give back to Arizona communities and foster Arizona’s economy.

            The universities employ more than 52,000 people, many of whom have already been vaccinated for COVID-19. Those who have not been vaccinated may meet the Board’s decision with hostility. In fact, Governor Doug Ducey recently reiterated his opposition to vaccine mandates. He maintains that getting the vaccine should be a matter of personal choice, not governmental demand. However, as of now, it seems that no vaccine by December 8 means no state university employment.

Conclusion

            President Biden’s executive order mandating COVID-19 vaccinations for all employees of federal contractors comes as part of a series of efforts to spur new vaccinations as the Delta variant spreads rapidly throughout the country. President Biden also announced that a new emergency standard will soon require employers with more than 100 employees to mandate vaccinations or weekly testing. These measures will surely be met with resistance from individuals, localities, and even states. Arizona’s proposed vaccine mandate bans may now be in conflict with federal law. This conflict is primed to spread throughout the country; however, nearly every legal challenge to the order has failed so far. For now, the President’s mandates are set in stone and, for many employees, the choice is between compliance or termination.

"Flu Vaccination Grippe" by Daniel Paquet is licensed under CC BY 2.0

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By Zach Levy

J.D. Candidate 2023

Zach is an ASLJ Staff Writer and 2L at ASU’s Sandra Day O’Connor College of Law. Prior to law school, he earned a bachelor’s degree in mathematical economics from Colorado College. He is the President of ASU Law’s Jewish Law Student Association and is interested in entertainment law. In his free time, he enjoys competitively rock climbing, playing basketball, and testing new Korean and Vietnamese restaurants.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.