Just minutes before Gov. Mark Gordon on Wednesday unveiled a “two-pronged plan” to combat a federal mandate for large employers to either vaccinate or regularly test all workers for COVID-19, University of Wyoming trustees directed administrators to budget for compliance with the directive.
The rule, which President Joe Biden announced last week, applies to employers with at least 100 workers and federal contractors. Gordon has joined other Republican governors in seeking to defeat the rule, calling it an egregious example of federal overreach.
But at the state’s only university, administrators plan to order $200,000 worth of testing supplies for the spring semester, which General Counsel Tara Evans said should be enough to comply with the new federal rule, if necessary.
“We know that supplies are quickly disappearing … and I do know that those supplies can be used elsewhere if we don’t use them for this purpose,” she said, stressing that if UW doesn’t purchase testing supplies now, it might be unable to by the time Biden’s new rule goes into effect.
Neither trustees nor administrators have proposed mandating vaccinations — though President Ed Seidel and Provost Kevin Carman have repeatedly stressed that such a mandate would provide UW’s best chance of returning to normal operations. UW is set to be only one of two universities in the Mountain West Conference not to require a vaccine come 2022, Carman noted during Thursday’s meeting.
State prepares for fight
Trustee John McKinley, a Cheyenne attorney who chairs UW’s budget committee, scoffed at the legal challenges Gordon and others have vowed to mount during a Wednesday morning meeting, citing his own “recollection of the U.S. Constitution.” He noted Article VI, which states that “Laws of the United States … shall be the supreme Law of the Land.”
“I’m not going to put too much stock into some of the noise we’re hearing regarding some of the interplay regarding the Supremacy Clause and other factors at play,” McKinley said.
Attempts by state officials to nullify federal law have been largely ineffective since the U.S. Supreme Court ruling of Cooper v. Aaron in 1958, when Arkansas officials unsuccessfully challenged the federal government’s right to force desegregation of state schools.
In a Wednesday announcement, Gordon said he’s directed Wyoming’s attorney general to prepare legal action to block the latest executive order.
Even if the AG’s effort were successful, however, that doesn’t mean UW has the appetite to avoid the rule.
“With all of our federal grants and research and everything else, I would be shocked if we’re not covered by the executive orders, but that’s just my layman’s initial reaction,” Trustee Dave True said Wednesday.
While the Biden Administration had yet to unveil detailed compliance rules for federal contractors, UW Counsel Evans said Occupational Safety and Health Administration’s enforcement of the rule would likely apply to UW.
OSHA programs are managed by the federal government in some states, but Wyoming operates its own version of the program. Absent some legal victory, Gordon’s press release notes that if the state refuses to “enforce the Biden Administration’s standard, Wyoming’s ability to administer [its OSHA] program could be jeopardized.”
Along with potential legal action, Gordon’s plan also proposes a special legislative session as early as October.
In his Wednesday press release, Gordon specified that such a session would be for the expressed purpose of passing “a small number of bills aimed at addressing overreach with regard to COVID-19 vaccine mandates.”
Senate President Dan Dockstader (R-Afton) and Speaker of the House Eric Barlow (R-Gillette) are both receptive to considering a special session, according to Gordon’s release.
“This matter should not go unanswered,” Dockstader said. “We should explore every option. As we learn more about the specifics associated with these federal standards and vaccine mandates in general we can properly coordinate our response.”
Current testing program
Currently, UW is testing just 3% of the university community each week.
UW’s COVID-19 policy for the fall semester states that “university voluntary diagnostic testing will continue to be available to asymptomatic faculty, staff and the public.”
However, a lack of supplies and personnel means it “is not possible to test everyone who wants to be tested,” College of Health Sciences David Jones told faculty in an email last week.
Jones said there are “very few” voluntary testing slots for faculty and told trustees Thursday that voluntary test slots for students typically fill up by 9:30 a.m. each morning.
In a survey UW conducted the week before the fall semester began, 88% of employees and 66% of students said they were vaccinated. However, only 40% of students have provided proof of vaccination, while 75% percent of employees have done the same, Seidel said.
As of Wednesday, the university reported 63 active COVID-19 cases in its community based on its weekly testing of 3% of campus.