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:

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.