How Biden’s new vaccine mandate may affect private colleges and universities

Higher education employees likely will be asked to get vaccinated or test weekly to prevent COVID spread.
By: | September 10, 2021
Photo from whitehouse.gov

As part of his “Path out of the Pandemic Plan”, President Joe Biden said on Thursday that large private companies must require employees to get vaccinated against COVID-19 or provide proof of negative tests weekly. That general directive may also apply to thousands of institutions of higher education that do not yet have those requirements in place for faculty, staff and administrators.

According to the new rule, any business with 100 or more employees must comply under a rule being implemented and overseen by the Occupational Safety and Health Administration (OSHA). Though the Administration’s guidance is focused heavily on businesses and K-12 schools, colleges likely will need to follow suit, even in states where bans on vaccine passports exist and where there has been a reluctance to implement them.

The President’s action comes at a time when COVID-19 rates are spiking nationwide because of the delta variant and where hospitalizations have risen because too few younger adults have received doses of the Pfizer/BioNTech (Comirnaty), Moderna and Johnson & Johnson vaccines. That includes a large population of college students and some employees who may be putting others or themselves at risk.

“We’ve been patient, but our patience is wearing thin, and your refusal has cost all of us,” Biden said during a press conference on Thursday. “While America is in much better shape than it was seven months ago when I took office … we’re in a tough stretch, and it could last for a while.”

Several colleges and universities that have reopened for the fall semester already have seen outbreaks on their campuses, even where vaccination rates have hit 90%. Some professors where mitigation measures are more relaxed have expressed concerns about a lack of protection at their institutions, most notably in conservative states. Though it is likely there will be legal challenges of the Biden mandate, institutions now have the backing of strong federal guidance along with the arm of OSHA to make stronger decisions.

“I think [college] presidents could say today, ‘There was an executive order issued by the President yesterday that employers with more than 100 employees have to mandate vaccines or do weekly testing for those who are presumed to be vaccinated. We’re implementing this now because we’re required by federal law,’” says Lynn Pasquerella, president of the Association of American Colleges and Universities (AAC&U). “I think they would be protected. Then it goes to litigation. But we’ve seen in Indiana, where they’ve mandated vaccinations and won their legal challenge in the courts, and the Supreme Court refused to hear that case. I think institutions—especially if their decisions are grounded in their mission and a commitment to the well-being of faculty, students, staff and community members—are on solid footing here.”

More than 1,000 colleges and universities across the country already have mandates in place, most for students, faculty and staff. That leaves 3,000 or so that still don’t have increased protective measures in place. Until now, many have relied on encouraging populations to adhere to mask and distancing guidelines and get vaccinations. Pasquerella says it’s time for those institutions to step up and join the others that have.

“The AAC&U has been pretty clear in saying that colleges should mandate vaccines,” she says. “For us, it’s an equity issue. The President made this clear in his comments that COVID-19 has disparately impacted communities of color. Of all the things students have to worry about today, they shouldn’t have to worry that they’re going to get sick because the student next to them hasn’t been vaccinated.

“We’ve also seen the moral distress experienced by leaders in institutions in states that have proscribed mandating vaccines and masks,” Pasquerella adds. “They feel helpless. So here’s an opportunity now to say that federal law is going to override state law and to do what they believe is correct.”

Biden’s six-point plan is targeted at 80 million Americans who have yet to receive vaccines. Part of his mission is to get as many adults vaccinated—through businesses across the country—to further protect populations that are aged 12 and under who are not yet eligible. Those students, he said, should be able to attend K-12 schools in person safely. He also wants to increase testing and require masking in highly trafficked areas and provide further assistance for those with COVID.

One of the other notable line items that could directly impact colleges and universities is a requirement that large entertainment venues mandate vaccines or testing for entry. Many colleges this past weekend had full stadiums for football games, with crowds that largely were unmasked and not socially distanced.

It is unclear how all of the requirements be will be implemented or what cost businesses or institutions will incur that must allow for testing of individuals.

“We would want greater clarity from the administration about the implications of [the requirements], but his mandate was pretty broad,” Pasquerella says. “It said you have to mandate vaccinations or you have to have weekly testing. And so then the question becomes, who bears the cost of that testing? I would be tempted, if I were an institution that had the mandate, to say, ‘If you refuse to get vaccinated, unless you have religious or health exemptions, then you’re going to bear the cost.’ And I know that some institutions have done that with respect to students.”

Regardless of how it will be executed, Pasquerella says the new requirements are welcomed.

“For me, there is a broader ethical issue about what we owe each other as citizens in a democracy,” Pasquerella says. “Sometimes we infringe on individual rights for the public good. And especially we should understand this as we are looking at remembrance around 9-11 (and the restrictions and policies being placed on citizens going through airports, for example).”