Study Guide

For the past two years, the United States government has had to deal with most major legislative and regulatory actions against the backdrop of the COVID-19 pandemic. In making policy, the federal government has been forced, either explicitly or implicitly, to account for the pandemic’s effect on businesses, various segments of the health care industry, the nation’s supply chain and everyday Americans. The most recent surge of the Omicron variant continues to highlight the enormous strain this pandemic has on the national economy and the health care system.

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This week, the National Science Foundation (NSF) updated its Cooperative Agreement Financial and Administrative Terms and Conditions to address the vaccine mandate set forth in Executive Order 14042 (Executive Order). NSF added a new Article 56 “Ensuring Adequate COVID-19 Safety Protocols” that will apply to all new NSF cooperative agreements, and amendments to existing awards, that are made on or after December 13, 2021. The new requirement explains that NSF’s decision to apply the Executive Order to cooperative agreements is based on the Department of Labor having included cooperative agreements in the definition of “contract-like instruments” that is cited in Section 2(e) of the Executive Order.

Yesterday, the U.S. District Court for the Southern District of Georgia granted a nationwide preliminary injunction against enforcement of Executive Order 14042 involving the vaccine mandate for federal contractors. The decision adds to a string of cases decided in the past few weeks blocking vaccine requirements issued by the administration. We have attached a link to the case here. Federal courts have now blocked the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard with its vaccinate-or-test mandate and the vaccination requirement for healthcare workers contained in an interim final rule issued by the Centers for Medicare & Medicaid Services (CMS).

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.