MANDATORY VACCINES FOR FIREFIGHTERS, EMTs, VOLUNTEERS Labor Relations Implications

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Diana Moffat

From our Summer 2021 e-newsletter

On August 25, 2021, the Governor of Oregon issued a Temporary Administrative Order (PH 38-2021) which provides for “Vaccination Requirements to Control COVID-19 for Healthcare Providers and Healthcare Staff.” This Temporary Order is effective from 08/25/2021 through 01/31/2022, unless modified or extended.

What we know as of August 27, 2021:

We know that this Order includes Firefighters, EMTs and Volunteers who are included as “Healthcare Providers and Healthcare Staff” under the Order since they interact in a “Healthcare setting providing direct patient or resident care or who have the potential for direct or indirect exposure to patients, residents, or infectious materials, and includes but is not limited to any individual licensed by a health regulatory board as that is defined in ORS 676.160.” ORS 676.160 includes the Oregon Health Authority as a Health Professional Regulatory Board under section 18. We also know that Healthcare settings specifically include “vehicles or temporary sites where health care is delivered.”

We know that the new Temporary Order specifically replaces the previous Temporary Order from 08/05/2021 which had allowed for weekly testing as an alternative to being vaccinated. The new Order does not provide for the alternative of testing. The new Order does, however, specifically provide for a medical or religious exception to the vaccine. The Oregon Health Authority (OHA) has now provided forms for both exceptions. These forms would be provided to the employer for processing. A copy of the new Temporary Order, as well as the vaccine exception forms can be found here: https://covidvaccine.oregon.gov

We know that, on or before October 18, 2021, qualifying firefighters, EMTs and volunteers must provide their employer, with either:

• Proof of vaccination showing they are fully vaccinated (likely to include the 14- day period following the final dose administration);or
• Documentation of a medical or religious exception.

“A medical exception must be corroborated by a document signed by a medical provider, who is not the individual seeking the exception, certifying that the individual has a physical or mental impairment that limits the individual’s ability to receive a COVID-19 vaccination based on a specified medical diagnosis, and that specifies whether the impairment is temporary in nature or permanent.”

“A religious exception must be corroborated by a document, on a form prescribed by the Oregon Health Authority, signed by the individual stating that the individual is requesting an exception from the COVID-19 vaccination requirement on the basis of a sincerely held religious belief and including a statement describing the way in which the vaccination requirement conflicts with the religious observance, practice, or belief of the individual.”

If an employee presents a qualifying medical or religious exception, the employer likely must then decide if the granting of the exception is required under the Americans with Disabilities Act (ADA) or under Title VII of the Civil Rights Act, both of which entail an analysis of reasonable accommodations and undue hardships to the employer. Employers should consult with their HR department over such analysis.

What we don’t know as of August 27, 2021:

Is it a reasonable accommodation to allow a qualifying medical or religious exception employee to remain in the workplace, to have continued contact with other employees and the public? What if you provide for weekly testing of those individuals?

If an employee elects to not be vaccinated and does not have a qualifying medical or religious exception, and therefore resigns, will they be entitled to receive unemployment insurance coverage based on the concept of “good cause” resignation? Generally speaking, people who quit their jobs aren’t eligible for jobless benefits unless they leave for “good cause,” meaning they faced an extraordinary issue that forced them to leave work.

If that same employee is terminated from employment, will they be entitled to receive unemployment insurance coverage? People who are fired often are eligible for benefits, unless they are fired because of misconduct. Is a refusal to be vaccinated, assuming that there is no bona fide medical or religious exception, misconduct?

“This is a rapidly evolving issue, and we are monitoring federal and state law and court cases closely,” the employment department said in a statement. “Each person’s situation is different, and eligibility for UI benefits is determined on a case-by-case basis.”

Do you have a Duty to Bargain with the Union?

A public employer has an obligation to bargain with the Union over the “impacts” of a change to working conditions if those changes impact a mandatory subject of bargaining. The employer, however, is prohibited from bargaining with the union to NOT follow State law. In addition, an employer cannot bargain with the Union to waive an individual’s right to applications of laws such as the ADA. So, what are the mandatory impacts that you may be required to bargain? Most employers already have in place policies and procedures for how employees are processed if they test positive for COVID and for whether testing and/or vaccinations are done on paid leave time. None of those policies are implicated by this new Temporary Order. However, any Demand to Bargain from the Union should be analyzed with your legal counsel.

The Bottom Line:

After October 18, 2021:

• Your qualifying employee may not work, assist, observe, or volunteer in a healthcare setting unless they are fully vaccinated or have provided documentation of a medical or religious exception.
• You, as the employer, may not employ, contract with, or accept the volunteer services of employees or volunteers who are working, assisting, observing or volunteering at a healthcare setting unless they are fully vaccinated against COVID-19 or have a documented medical or religious exception.

It is recommended that you consult with your labor legal counsel and your HR department regarding these important decisions. Additional information from the OHA is expected in the coming days.

Time to Dust Off Those Working Rules

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Christy Monson

From our Spring 2021 e-newsletter

If your Board or Council hasn’t already done so, now is the time to find those Council or Board Rules (sometimes called Working Rules of Order), dust them off, and re-read them. Often edits are called for, both to clarify your governance processes and to customize them for your governing body.

Ideally, your rules should be no longer than six or so pages. They should clearly and simply describe how your governing body has decided to work together and the general process and protocol for your meetings. More importantly, a thoughtful discussion about your rules will set the tone for the rest of the year—and can also serve as a good faith promise among elected officials about how they will treat each other, staff, and the public.

The best process for reviewing your rules is to first have your Manager and/or your attorney review them and suggest edits. The rules should then be circulated to your elected officials, placed on an agenda for discussion, possible amendment and adoption. (If your staff and your Board President or Mayor have done the advance work, this agenda item should take approximately 30-60 minutes.)

A successful discussion would include the entire governing body agreeing not only to follow your newly-adopted rules, but to also hold each other accountable for acting in a collaborative, respectful manner—especially when times get tough. In this conversation, your most important goal should be to secure each member’s buy-in and public commitment about how you will treat each other, how you will treat your staff, and what your Board or Council meetings will ideally look and sound like.

Below I provide you with some key concepts to discuss and include in your Rules:

• Who has the authority to create your agenda? How would someone else get an item placed on an agenda? (Author’s note: no blindsiding. All items should be clearly listed on a future agenda so that the public has a general idea of the topic to be discussed and the vote, if any, to be taken.)

• Will your Board or Council use Work Sessions where no votes are taken? Why or why not?

• Will you allow your fellow Board members to abstain from votes where they don’t have a conflict of interest? What is the effect on other Board members if someone frequently abstains? What is the effect on your community? (Author’s opinion: abstentions—unless they are in response to a conflict of interest—are generally bad for your community and for your governing body as a whole.)

• How should conflicts of interest be handled? How will you apply Oregon ethics law when handling conflicts?

• How closely will you follow Roberts Rules of Order? Do you wish to follow a simplified version of Robert’s Rules? (Author’s hint: simple is better.)

• What are your options if an elected official repeatedly misbehaves at meetings or breaks your rules?

• Who has the authority to appoint people to committees and to vacant Board or Council positions? Does your Charter already provide some guidance on this matter?

• Who has the authority to discuss personnel issues at a public meeting? What happens if a member of the public discusses personnel issues at the meeting?

• How and when will you take public comment? When during the meeting will you take it? Will the public be limited to three minutes of non-repetitive comments? Why or why not? What happens if a member of the public makes comments that are inappropriate or outside of your governing body’s authority to address? (Author’s note: remember that public comment does not mean a Council discussion. If the comment is important or requires action, you can always ask staff to address the issue later or schedule the issue on a future agenda.)

• What are your options to increase elected official participation and to avoid one or two members from dominating the conversation?

• How much staff time is a single member allowed to use per month? Why or why not?

• Who has the authority to contact your legal counsel?

• Who has authority to speak to the press on behalf of the governing body? Do you want to voluntarily agree to not to speak to the press about governing body matters individually? Why or why not?

• Do you wish to designate a Board member to handle routine personnel matters involving your Manager or Administrator, such as vacation/sick leave requests and monitoring? What would happen if you don’t do this?

• What will you do if a public meeting turns disrespectful? Does your President or Mayor have additional authority in such cases? Anyone else?

Your legal counsel should be able to provide you with some sample rules and a process for evaluating and adopting them. Good luck and thank you for your service to your community. And remember: the time to decide on how you will handle difficulties is before the difficulties arise!

Understanding OR-OSHA COVID-19 Temporary Rules

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(Cover Your Face – But Keep Your Eyes and Ears Open)

 

Carrie Connelly

From our Spring 2021 e-newsletter

It’s been over a year that we’ve stayed COVID compliant – and while some of us might be ready to relax, we’re not yet out of the woods. Oregon Occupational Safety and Health Administration’s (OR-OSHA) Temporary COVID-19 Rules (OAR 437-001-0744) went into effect on November 16, 2020, and will remain in effect until May 4, 2021, unless earlier revised or repealed. A slightly modified “permanent rule” is in the works, with hearings to be held in the upcoming weeks. One proposed change omits the following deadlines that have passed.

Oregon OSHA is required to adopt OAR 437-001-0744 as a permanent rule. However, OSHA notes that, as its rule addresses the COVID-19 pandemic, it will repeal the rule once no longer necessary. That determination will be made in consultation with OSHA, OHA and other stakeholders.

Workplaces that provide emergency first responder services are deemed at “exceptional risk,” thus more and different requirements apply than in other workplaces. The rules and appendices are lengthy, thus beyond the scope of this article. Instead, the following described changes must be made to your public offices, if you are not yet in compliance.

1. Distance six feet, whether indoors or outdoors. Emergency medical service first responders, firefighters, and non-emergency medical transports are subject to more specific guidance that overrides this general rule, in the event of conflict. See, OAR 437-001-0744, Appendix A-17. For example, spacing requirements may not need to be followed on emergency response apparatus.

2. Continue to wear face coverings or personal protective equipment (PPE). This measure applies on all calls and in station break rooms, shared toilet facilities, or other common areas; but may be relaxed in living areas (if any), among residents. Emergency response vehicle drivers may also adjust or remove a mask that impedes vision or distracts from safe vehicle operation.

3. Clean and sanitize spaces occupied for less than 12 hours a day every 24 hours. Spaces occupied for more than 12 hours a day require cleaning every 8 hours. Emergency service providers must also: (1) develop procedures for routine cleaning and disinfection, as appropriate for healthcare settings; and (2) adhere to CDC guidelines for disinfection and sterilization in healthcare facilities.

4. Permanently post OR-OSHA’s “COVID-19 Hazards Poster” in a conspicuous location.

5. Conduct a COVID-19 Risk Assessment. Such action was required no later than December 7, 2020. Emergency service providers must record summary responses to thirteen COVID-19 exposure risk assessment questions, in writing.

6. Ventilate facilities with outside air circulated through existing heating ventilation and air conditioning systems. Such action was required no later than January 6, 2021, and by June 1, 2021, entities with more than 10 employees and an existing HVAC system must keep on file a written certification that the system is operating in accordance with OSHA’s rule. Thereafter, staff must regularly clean and maintain station air filters and minimize indoor air recirculation on a quarterly basis.

7. Establish and implement an Infection Control Plan. Such action was required by December 7, 2020. Plan controls include, but are not limited to, ventilation, staggered shifts, redesigned workplaces for physical distancing, reduced shared services and tools, limits on the number of employees (or other individuals) in workplaces, and provision of PPE. Station Plans must identify a knowledgeable person to administer the Plan, and be re-evaluated frequently to reflect needed changes, based on employee feedback and control assessments.

8. Inform and train employees on identified topics. Such action was required no later than December 21, 2020. Trainings should invite feedback, and must cover physical distancing, face coverings/PPE, sanitation, signs and symptoms of COVID-19, the entity’s infection notification process, medical removal procedures, basic risk factors, and modes of transmitting COVID-19. Training materials should be posted soon on OR-OSHA’s website.

9. Notify affected employees (within 24 hours) that had work-related contact with an individual who tested positive for COVID-19.

10. Cooperate with mandated COVID-19 testing and vaccinations that a local public health agency or OHA deem “necessary.”

11. Remove workers due to COVID-19, if recommended as a result of contact tracing identification.

If your entity has yet to comply with the above requirements, it’s not too late (even though some applicable timelines have passed.) Seek assistance when questions arise, and be prepared to obtain required resources. Coordinate with your legal team, as necessary.

Down in the Weed(s): Regulation of Hemp and Marijuana

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Dan Lawler

From our Spring 2020 e-newsletter

The most recent United States Farm Bill, which Congress passed in 2018, reopened American farming and industry to hemp, a long-banned commodity currently experiencing a global surge in production. Oregon’s climate and soils are well-suited for hemp production and local governments throughout the state have received inquiries from private companies wishing to grow, process, and sell hemp or hemp products within their jurisdictions. However, the similarities and differences between hemp and marijuana can create confusion for local governments interested in regulating one or both products. This article details: 1) the differences between hemp and marijuana; 2) state and local regulation of hemp and marijuana; and 3) how local governments can regulate the location, uses, and effects of hemp and marijuana businesses.

How Are Hemp and Marijuana Different?

Hemp and marijuana are both varieties of the cannabis plant, Cannabis sativa. However, hemp and products derived from hemp contain no more than 0.3% THC (the psychoactive compound in cannabis plants). Any cannabis product or part of the cannabis plant that contains more than 0.3% THC is considered “marijuana” under Oregon law. Although the plants can look similar, they have different physical attributes and uses. Marijuana is grown primarily for recreational and medical use, but hemp is incapable of producing the “high” that marijuana users seek and has a much wider variety of uses.

The following is a non-exhaustive list of products derived from hemp that local governments could receive inquiries about:

    • Cannabidiol (CBD), or concentrated hemp oil
    • Clothing and fabrics
    • Food (hemp seeds, hearts, oils, and milks)
    • Paper
    • Skincare and soaps (using hemp oil)
    • Animal bedding

 Regulation of Hemp and Marijuana

The Oregon Liquor Control Commission (OLCC) and Oregon Health Authority (OHA) regulate recreational and medical marijuana, respectively, while the Oregon Department of Agriculture (ODA) regulates hemp. ODA places only a few restrictions on the retail sale of hemp products like CBD. First, under OAR 603-048-1500(3), a person may not sell a hemp product to a customer unless the hemp item is tested in accordance with ODA requirements. Testing will reveal the THC concentration of the hemp product and OAR 603-048-1500(5) prohibits retailers from selling hemp products to consumers that contain more than 0.3% THC. To sell hemp or CBD products containing more than 0.3% THC would require the seller to obtain a retailer license from the OLCC or to register with the OHA. However, OLCC, OHA, and ODA perform all required testing on hemp and marijuana products, as cities and counties lack the regulatory authority to do so.

Because the State regulates and allows hemp production, local governments in Oregon are unable to place outright prohibitions on growing, processing, or selling hemp and hemp products. In contrast, ORS 475B.968(1) provides cities and counties with the opportunity to allow their electors to vote on whether to allow or prohibit the establishment of the following marijuana operations within their jurisdictions:

    • Marijuana processing sites and dispensaries registered with OHA
    • Marijuana producers, processors, wholesalers, and retailers licensed by OLCC

After submitting the question to its voters, a city or county can adopt an ordinance to reflect the results of the election and to either allow or prohibit marijuana facilities. Please let us know if your county or city has questions about the election or ordinance described above.

Other Ways to Regulate Hemp and Marijuana

Although cities and counties generally have broad authority to regulate for the public welfare, any local ban on hemp or hemp businesses may run afoul of the Interstate Commerce Clause of the U.S. Constitution. Similarly, any ban on marijuana or marijuana businesses that does not comply with ORS 475B.968(1) and follow the statute’s procedures may run afoul of state law. However, cities and counties can regulate some aspects of the hemp and marijuana industries within their jurisdictions through land use and nuisance codes.

Land use codes can help local governments regulate the locations of hemp and marijuana businesses, as well as the uses allowed at each location. Generally, hemp and marijuana grow operations are subject to agricultural zones and uses, while the processing of hemp and marijuana plants into other products can constitute a light, medium, or heavy industrial use. Predictably, the retail of hemp and marijuana products is generally limited to commercial zones. However, the specific language of your city or county’s land use code could change the analysis above. Please let us know if your city or county has questions about regulation of hemp or marijuana businesses under its zoning and land use code.

Cities and counties can also use nuisance codes to address some of the potential effects of hemp and marijuana business within their jurisdictions. For example, many nuisance codes prohibit the accumulation of plant wastes and rubbish without proper screening or storage measures. In addition, nuisance codes typically include provisions that allow cities and counties to address offensive odors generated within their boundaries. If a hemp or marijuana business causes any of the conditions detailed above, a city or county may be able to declare these conditions public nuisances and initiate proceedings to abate the nuisances. However, the specific language of each nuisance code and the specific facts of each situation will determine whether nuisance abatement is a viable option. Please let us know if your city or county has questions about regulating the effects of hemp and marijuana businesses through its nuisance code.