TL;DR: there is no current or draft law, regulation, rule, standard or other requirement that mandates public schools in Nebraska and South Dakota to vaccinate their staff for COVID-19. Not from an executive order, not from OSHA, not from the man on the moon. For now, there is no obligation that schools, ESUs, or other public educational entities force staff to get vaccinated. It remains a local decision.
If you want the details and analysis, read on...
Biden EOs. As you’ve heard us talk about over the last few months, the Biden Administration issued several executive orders earlier this fall mandating vaccines for certain individuals or mandating that regulatory agencies, like OSHA and DHHS, create rules. Broadly, these mandates focus on employees working for the federal government; employees working in healthcare facilities that receive Medicaid or Medicare; federal contractors; Head Start employees; and private employers covered by OSHA with 100 or more employees.
There is A LOT of confusion out there about who is covered by each of the mandates, and there probably will be for some time. Litigation is already underway, too. Nothing is “final, final” yet, but we have a pretty good idea that the answer is, “No,” there is no current vaccine mandate that applies to Nebraska or South Dakota schools coming from the Biden Executive Orders or agency rules.
OSHA ETS for 100+ Employers. Just a few hours ago, OSHA provided notice that it would finally release its “emergency temporary standard” (ETS) it was directed to implement by President Biden’s executive orders earlier this fall. This is the one you’ve seen on TV and read about in the news. It requires “covered employers” with 100+ employees to have all employees vaccinated by January 4.
Nebraska and South Dakota schools are not “covered employers” under this law. The Occupational Safety and Health Act and its regulations have long defined “employer” as follows:
The term "employer" means a person engaged in a business affecting commerce who has employees, but does not include the United States (not including the United States Postal Service) or any State or political subdivision of a State.
OSHA’s summary of the ETS states pretty clearly that “the agency is acting to protect workers now in adopting a standard that will reach two-thirds of all private-sector workers in the nation.” If you’re interested (or a sadist), you can read all 490 pages of the ETS the DOL-OSHA will publish in the Federal Register, here. In a footnote buried on page 329, they confirm that state and local governments are not covered by the vaccine mandates, unless a state has voluntarily applied OSHA to its state and local governments. Neither Nebraska nor South Dakota have done so.
Head Start Employees. On September 9, 2021, the Director of the Office of Head Start indicated that DHHS/Head Start would initiate rulemaking to develop a rule implementing President Biden’s executive order to vaccinate all Head Start workers. To date, we haven’t seen any official notice or draft rule. The Head Start website encourages all Head Start programs to require vaccines, but again, there is no rule mandating it yet. If you have Head Start employees, continue to follow any updates on this mandate, especially any rule issued by DHHS/Head Start.
Vaccination Requirements for “Federal Contractors.” On the same day that President Biden directed OSHA to develop the rule, he issued another executive order imposing certain vaccination mandates on “federal contractors.” If you heard that and assumed that it was directed toward companies like Boeing, Lockheed Martin, and other companies making fighter jets, you’re not alone. However, the government’s conception of “federal contractor” is not so limited and almost certainly affects some schools reading this post . . . .
On September 24, the Biden administration’s task force tasked with implementing the federal contractor vaccine mandate released “Guidance for Federal Contractors and Subcontractors.” In this guidance, the Federal Workforce Task Force defined federal contract and federal contractor. This is where it gets interesting for schools. The Task Force guidance defines a “contract and contract-like instrument” (aka, a covered contract) as follows:
That proposed rule defines a contract or contract-like instrument as an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them. The term contract includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing. The term contract shall be interpreted broadly as to include, but not be limited to, any contract within the definition provided in the FAR at 48 CFR chapter 1 or applicable Federal statutes. This definition includes, but is not limited to, any contract that may be covered under any Federal procurement statute. Contracts may be the result of competitive bidding or awarded to a single source under applicable authority to do so. In addition to bilateral instruments, contracts include, but are not limited to, awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; exercised contract options; and bilateral contract modifications. The term contract includes contracts covered by the Service Contract Act, contracts covered by the Davis-Bacon Act, concessions contracts not otherwise subject to the Service Contract Act, and contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public.
The guidance goes on to define covered contractors and subcontractors broadly as any “prime contractor or subcontractor at any tier who is party to a covered contract.”
Yeah, you read that right. Contracts subject to federal procurement rules and/or the Davis-Bacon and Related Acts (hello, ESSER-funded construction projects!) must require that prime contractors and lower-tier subcontractors on those projects follow the federal vaccination requirements and guidance on those projects.
From the looks of the guidance, any company that holds a federal contract or subcontract as defined above would be required to mandate vaccines for all of their employees. The only exceptions are those required by law, such as an accommodation based on disability.
What is the deadline for these requirements to be included in covered contracts? There is a phased in process for these requirements:
For contracts that were awarded prior to October 15 but that will continue to be performed after October 15, the vaccination requirements must be added to the contract “at the point at which an option is exercised or an extension is made.” We think this means that at the point where the terms of the contract are modified (maybe even through a change-order?), then the new provisions required by this guidance must be added.
For bids solicited before October 15 and awarded prior to November 14, school districts must include the new provisions in the solicitation and are encouraged to include the new provisions in the contract.
For bids solicited on or after October 15 and awarded prior to November 14, school districts must include the new provisions in the bid solicitation and in the contract.
For contracts awarded on or after November 14, the new provisions must be included in the contract.
For all of your projects using federal funds, we recommend that you contact your school district’s attorney to discuss these timing requirements and the provisions that you need to include in your bidding documents and/or your contracts.
What does this mean for schools and vaccines? Well, we’re still not exactly sure. As we discussed in our most recent Q&A with KSB, the definitions within these vaccine mandates will be important--and now we’ve seen some. There is already litigation (which Nebraska’s AG has joined) attempting to block these requirements. If the government can successfully enforce the requirements broadly to apply to any contract entered into pursuant to “any Federal procurement statute” and “contracts covered by the Davis-Bacon Act,” that would mean any contract the school has entered into when using federal funds, such as ESSER III or the EDGAR procurement rules, may be covered. The guidance suggests that the grant recipient (your school) should include contract provisions related to the mandates to ensure the contract puts the burden on any covered contractor to impose the vaccine mandate. We have already assisted some schools in doing just that.
If you have any existing or future federal contract (such as for an ESSER III HVAC project, for example), you may be getting a call from your contractor(s). We’ll keep following along with all of these mandates and rules and what it may mean for schools. In the meantime, if you have questions contact your school attorney or contact any of the attorneys here at KSB. You can email all of us using ksb@ksbschoollaw.com.