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BOARD AMENDS DIRECTIVE TO ALLOW COMPLIANCE WITH BIDEN EXECUTIVE ORDER

10/25/2021 - Jackson, Miss.

All employees that are employed at public universities that are federal contractors or subcontractors are now required to receive the COVID-19 vaccination, within the parameters outlined below and except those who obtain an accommodation as provided by law, including those for disability, medical reasons or for sincerely held religious beliefs.

To comply with the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, issued by President Joseph R. Biden Jr. on September 9, 2021, the Board of Trustees of State Institutions of Higher Learning passed the following motion at its meeting held today in Jackson:

    For reasons including the success of COVID-19 prevention methods at the Institutions Higher Learning in the State of Mississippi, the IHL Board of Trustees on August 27, 2021 and September 17, 2021 provided direction to the Mississippi universities that encouraged vaccination but prohibited a requirement of vaccination except for institutional clinical settings (the "Prior Board Direction"). Since the August action by the Board, President Joseph R. Biden, Jr. issued Executive Order 14042 on September 9, 2021 ("President Joseph R. Biden, Jr.'s Executive Order 14042") imposing federal COVID-19 vaccine mandates for federal contractors anticipating later guidance would clarify the Order. The IHL Board does not support the federally imposed COVID-19 mandate, has been and is supportive of medical and religious exemptions to the mandate and chose to wait for further and more definitive federal clarification before considering revisions to the Prior Board Direction. Following the September action of the Board the Safe Federal Workforce Task Force on September 24, 2021, issued written guidance "COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors" (the "Guidance") providing definitions, explanations, and answers to frequently asked questions. The Board is required to act quickly based upon the new information provided it, since the vaccination schedule imposed by President Joseph R. Biden, Jr.'s Executive Order 14042 would require a patient to receive the first Moderna vaccine by October 27th, the first Pfizer vaccine by November 3rd, the second required Moderna or Pfizer vaccine on November 24th, and the Johnson and Johnson vaccine by November 24th - the day before Thanksgiving. Based upon the new information in and the federal requirements imposed by President Joseph R. Biden, Jr.'s Executive Order 14042 and the Guidance, I make the following motion regarding the Prior Board Direction:
    The Board finds:
    1. Since the Prior Board Direction, Guidance has been issued resulting in IHL reviewing and revising the Prior Board Direction in order to comply with federally-imposed COVID-19 vaccine mandates required by President Joseph R. Biden, Jr.'s Executive Order 14042.
    2. All institutions governed by IHL are or during the effective time of President Joseph R. Biden, Jr.'s Executive Order 14042 are likely to be recipients of Federal Government Contracts or contract-like instruments ("Federal Contracts") so as a be a prime contractor or subcontractor to the federal government ("Covered Contractor").
    3. At the present time, IHL institutions have approximately 120 Federal Contracts having at least a present combined value of $271 million dollars.
    4. All institutions governed by IHL having Federal Contracts have a number of employees working on or in connection with Federal Contracts as described in President Joseph R. Biden, Jr.'s Executive Order 14042 and defined in the Guidance.
    5. Under the Guidance, the Biden vaccine mandate applies to all full-time or part-time employees working on or "in connection with" a covered contract or at a "covered contractor workplace". An employee works "in connection with" a covered contract even if the employee's work is not called for under the contract, as long as the work is "necessary to the performance of the contract." The Guidance explains that employees working in support functions for the federal contracts, including, but not limited to, areas such as human resources, billing, and legal review, meet the "in connection with" standard.
    6. Under the Guidance, a "covered contractor workplace" is any location controlled by the contractor where even one contractor employee working on or in connection with a covered contract is likely to be present during the contract period of performance. Indoor and outdoor work locations are included in a covered contractor workplace.
    7. Under the Guidance, where the covered contractor employee works on only one floor of the contractor's building, or in one building on the contractor's campus that has multiple buildings, all employees working at that building or campus are covered by the federally imposed COVID-19 vaccine mandate unless the university/contractor can affirmatively determine that the covered contractor employee will not come into contact with or have an interaction with non-covered employees during the period of the covered Federal Contract, even in common areas of the campus, including, but not limited to, stairwells, elevators, parking garages and dining areas.
    8. Because of the risk to an institution of making an erroneous determination of separateness of Covered Employees and non-covered employees, the risk of inconsistent determination and application by the institutions, and the administrative burden to the institutions to begin again the process of determination of separateness as Federal Contracts are expanded or new Federal Contracts are granted, the Prior Board Direction is revised as follows:
      1. The Prior Board Direction remains in effect as related to a condition of student enrollment and university employment for those employees who are not Covered Employees and who do not go onto the university campus or onto any other university-controlled property subject to the Order and the Guidance as the same may be amended, modified, or clarified ("an Exempt Remote Workplace").
      2. All university employees except those working exclusively from an Exempt Remote Workplace who are not working on or in connection with a Covered Contract shall comply with federally-imposed vaccine mandates under President Joseph R. Biden, Jr.'s Executive Order 14042 and the Guidance as the same may be amended, modified or clarified, with each university to provide accommodation to such employees as provided by law, including but not limited to medical and religious exemptions.
      3. Should the federally-imposed subject COVID-19 vaccine mandate under President Joseph R. Biden, Jr.'s Executive Order 14042 be stayed, delayed or revoked, this Direction shall be stayed or revoked accordingly.

On September 24, 2021, the Safe Federal Work Force Task Force issued written guidance to provide definitions, explanations and answers to frequently asked questions concerning the order. The motion passed by the Board of Trustees is a result of the Executive Order and the Task Force guidance.

"While the Board of Trustees recently passed a motion prohibiting requiring the COVID-19 vaccine as a condition of employment or enrollment," said Dr. J. Walt Starr, President of the Board of Trustees of State Institutions of Higher Learning. "Federal law and regulations supersede Board policy. We are forced to comply with federal executive order or risk losing access to federal contracts, which play a significant role in furthering the research mission at our universities. While the Board prefers to allow individuals to make their own decisions about their health-related issues, President Biden's Executive Order effectively ties our hands."

The federal mandate applies to faculty, professional staff, support staff and student workers at institutions that are federal contractors or subcontractors. Those employees must show proof of being fully vaccinated, or receive an accommodation for a disability, medical reasons, or sincerely held religious beliefs, by December 8, 2021.

Mississippi Public Universities are currently working under 120 federal contracts valued at $271 million.

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The Mississippi Board of Trustees of State Institutions of Higher Learning governs the public universities in Mississippi, including Alcorn State University; Delta State University; Jackson State University; Mississippi State University including the Mississippi State University Division of Agriculture, Forestry and Veterinary Medicine; Mississippi University for Women; Mississippi Valley State University; the University of Mississippi including the University of Mississippi Medical Center; and the University of Southern Mississippi.

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