Vaccine mandates for college students, employees poised to extend into 2022
Amid hundreds of possible firings and the ongoing health threat posed by the pandemic, the Board of Regents voted 9-4 on Friday to make the COVID vaccine mandate for higher education employees a permanent change to system policy.
Separately, a federal District Court judge denied a request for a temporary restraining order that would have sought to stop enforcement of a vaccine mandate for Nevada college students.
The vote and ruling made Friday could extend both mandates well into next year, pending a decision by state officials to remove a similar emergency designation from that student mandate.
However, though the regents’ decision is permanent in the technical sense of the board’s code, the mandate policy is still a temporary stopgap meant to be repealed at some future date.
Specifically, Friday’s vote removed a 120-day limit imposed by the emergency nature of the original policy. It now kicks any future decision on the mandate to a meeting before the start of the fall 2022 semester, a requirement baked into the mandate language approved by regents in September.
That 120-day limit would have expired next month, in the midst of a grace period for a firing process that has affected more than 1,100 employees across the higher education system.
As of the mandate’s Dec. 1 deadline, roughly 5.5 percent of Nevada System of Higher Education (NSHE) employees — or 1,258 people —remained unvaccinated. Roughly 1,150 of those employees had received notices of termination as of Friday, according to data presented to regents, though they will not be let go until Dec. 31.
That same data also shows the vaccination rates are not evenly distributed across different employee groups. NSHE Chief General Counsel Joe Reynolds told regents that few academic or administrative faculty had been terminated because of the mandate.
“It has not impacted 99 percent of our academic faculty, meaning 99 percent of our academic faculty are fully vaccinated,” Reynolds said. “It has not impacted 98 percent of our administrative faculty, meaning the notices of termination I referenced, the 1100 or so, are by far a majority not faculty.”
Still, Regent Laura Perkins, Byron Brooks, Patrick Boylan and Lois Tarkanian voted against Friday’s measure, raising doubts over the rapidly changing nature of COVID treatments and skepticism of the necessity of a “permanent” mandate in light of emerging therapeutics to treat COVID infections.
“Things are happening so fast, I just feel that this knee-jerk response is a bit much,” Perkins said. “To have as much information on the table is very, very important, and I think all of us said that things are changing so fast, they’re in a state of flux, so I would have real reservations about making a permanent solution to a temporary problem.”
Brooks, Boylan and Tarkanian also opposed the mandate policy in the original vote in late September. Perkins did not.
Noting that the 120-day emergency deadline extended into the end of January, Regent Cathy McAdoo suggested tabling Friday’s motion and revisiting the issue next month to account for the fluid nature of the pandemic.
But Reynolds pushed back against that idea, saying in part that it would “send a signal of chaos and confusion to our entire faculty about this board's commitment to this policy.”
“We are in litigation on different COVID policy matters, [and] it would also make our ability to defend this board's position much more difficult and would signal a lot of uncertainty,” Reynolds said.
Though it is unclear whether the litigation referenced by Reynolds was the lawsuit filed by the UNR student, that suit was the most prominent legal challenge to the pair of vaccine mandates encompassing the roughly 130,000 students and employees under the NSHE umbrella.
That student, freshman Jonah Gold, filed his suit last month against UNR President Brian Sandoval, NSHE Chancellor Melody Rose and Gov. Steve Sisolak, alleging in part that the mandate and other quarantine policies discriminated against his natural immunity after previous infection with the virus.
The state Board of Health initially approved the mandate in August, allowing only fully vaccinated students to enroll in in-person classes next spring. However, unvaccinated students may still enroll online, and many students have until mid-January to enroll.
But U.S. District Court Judge James Selna denied the student’s request for a temporary restraining order that would have suspended enforcement of the mandate. In his decision, Selna wrote that Gold failed not only to show a likelihood of success, but also failed to raise “serious questions going to the merits.”
“The Defendants are attempting to protect a campus community with thousands of students, faculty, and staff from a deadly infectious disease,” Selna wrote. “This far outweighs any harm Gold may face in choosing between receiving a medically-approved vaccination or receiving his education in an alternate manner.”
As the debate over vaccine mandates continues, new concerns about the burden of testing unvaccinated employees have emerged.
Facing an estimated $18 million cost burden as federal aid is set to run dry later this month, the Public Employees Benefits Program (PEBP) board voted yesterday to approve a new $55 monthly surcharge for unvaccinated employees to cover the ongoing costs of weekly surveillance testing.
Laura Rich, executive officer of PEBP, told regents Friday that the thought process was aimed at “shifting the burden onto those who contribute to those costs, in this situation.”
“An unvaccinated [PEBP] member has a much, much higher chance of hospitalization and much higher costs than a vaccinated member,” Rich said. “A vaccinated person is not subject to weekly testing, so they're not contributing to those costs. It would be the unvaccinated. If we do not shift those costs on to that population, then it's shifting it to everybody.”
Rich also told regents that, according to the governor’s office, it appeared unlikely that PEBP would receive federal funds from the American Rescue Plan that might mitigate either testing losses or other cuts made to employee benefits by legislators earlier this year.
The new surcharges would not affect either fully vaccinated employees or employees with an approved religious or medical exemption.