Friday, November 5, 2021 at 12:19 p.m.
Dear Campus Community,
Many of you have probably heard that the federal government has been establishing COVID mitigation requirements, including vaccine mandates, for federal contractors. We have been following this issue closely because NDSU has more than $33 million dollars in federal contracts and federal buildings on NDSU land. In addition, this requirement is anticipated to be included in future grants which would dramatically increase NDSU’s financial exposure. This is a complicated and fluid situation, and it’s important for campus to be aware of developments.
Scope and timing. On September 9, 2021, President Biden issued the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors. Based on the Executive Order, the Safer Federal Workforce Task Force issued the “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” on September 24, 2021 (the “Federal Guidance”). You can find the Federal Guidance here. In addition to the Federal Guidance, attorneys from the North Dakota Attorney General’s office also provided compliance instructions to all the institutions in the NDUS.
The Federal Guidance establishes COVID safety protocols that are required for any entity entering into certain contracts and leases with the federal government. Of particular interest for purposes of this update is the federal vaccine mandate.
First, the Federal Guidance establishes that the vaccine mandate is very broad. It covers all employees who are working directly on designated federal contracts, but it goes well beyond those employees. It also covers employees who work “in connection with” these federal contracts, and that includes people who provide services to all employees such as administration, human resources, information technology, etc. However, even that’s not the entire scope, because all the workers in all the workplaces where the impacted workers are likely to be present at some point also have to be vaccinated.
Given the sheer breadth of this requirement, and consistent with the legal advice we have received, the only practical way of ensuring compliance is to mandate coverage for all employees. However, there are two narrow exceptions involving valid religious or medical concerns (more information on those will be provided later). Employees receiving an exemption will be required to maintain other mitigation efforts including mandatory weekly testing, masking and social distancing.
The next question is the timing of the requirement. According to the Federal Guidance, a full series of vaccinations need to be received by January 4.
Current Status. There is potential that the mandate may be modified. For starters, there is considerable political pressure being put onto the White House by various industries to modify this mandate, and it remains unclear whether this pressure will result in modifications.
In addition, the State of North Dakota recently joined a litigation seeking to stay the enforcement of the Federal Guidance. You can read about that here. We understand that the litigation will likely be having a hearing soon on whether the court should grant a temporary stay. The results of this litigation could impact NDSU’s compliance requirements but should not in any way be counted on one way or the other.
NDSU’s Current Plan.
All this uncertainty leaves NDSU in a precarious position. We want to ensure compliance with the regulations before the January 4th deadline, but we are hesitant to impose a vaccine mandate until it is clear that it truly is the only way to comply with the Federal Guidance. Late last week, the State Board of Higher Education cautiously authorized all the institutions in the NDUS, including NDSU, to take all reasonable and appropriate steps to comply with these requirements so as to ensure their fiscal health.
To that end, NDSU will be immediately implementing the first phase of a vaccine mandate, but for now, that will only involve 33 employees that work in the federal buildings on NDSU property. Each of these employees will be contacted directly from HR and given instructions about the vaccine mandate and the option of pursuing an exemption.
Obviously, you probably already know if the above applies to you, but if you do not receive an email from HR, you do not need to do anything right now. Regardless, we would encourage you to start your vaccination process now because if the Federal Guidance is not modified by the White House or stayed by a federal court, NDSU will have no choice but to implement a vaccine mandate for all NDSU employees (i.e., full-time, part-time, student-employees, graduate assistants, etc.). Students who are not also NDSU employees would be excluded from the mandate.
In the event that NDSU must broaden the mandate to all employees, we will issue guidance to the entire campus on how to report your vaccination status and how to seek an exemption. Please remember, you do not need to take action right now unless you are one of the 33 faculty and staff directly contacted by HR -- but for your timing and convenience, now would be a good time to get ahead of a possible, if not likely, far broader mandate.
Please know we recognize that the majority of faculty, staff and students at NDSU are already vaccinated. We will do everything we can to make your confirmation of that as effortless as possible. For those not yet vaccinated, we’ll do all we can to make the vaccination and exemption process similarly convenient.
As we take steps to implement these new federal requirements, NDSU is committed to providing the appropriate support and resources to our employees. We are establishing a series of FAQ’s which will be issued to campus next week.
We understand that these will be dramatic steps, but NDSU would face a major financial problem and disruption to research if we failed to comply with the regulations. We also anticipate that these steps will ultimately help our community, our state and our country finally move past this pandemic.
We know you will have many questions, so please stay tuned for further guidance. For those who wish to comment, please remember that this is not a situation in which NDSU has flexibility.
Dean L. Bresciani, President
NORTH DAKOTA STATE UNIVERSITY