By Carlie Bacon
The Oregon Health Authority (OHA) released a new administrative rule following Governor Kate Brown’s recent announcement that Oregon’s vaccination requirement for healthcare workers will no longer offer a testing alternative. Instead, effective October 18, 2021, Oregon healthcare providers and staff cannot “work, learn, study, assist, observe, or volunteer in a healthcare setting unless they are fully vaccinated or have provided documentation of a medical or religious exception.” Likewise, employers of healthcare providers and staff are prohibited from employing, contracting with, or accepting the volunteer services of providers or staff who have not met these requirements.
The vaccination requirement applies to a broad range of individuals and settings. The new rule defines healthcare providers and staff as “individuals, paid and unpaid, working, learning, studying, assisting, observing or volunteering 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.” The rule excludes parents, family members, guardians, and foster parents residing in and providing care to a child or foster child in the home. A healthcare setting is “any place where health care, including physical or behavioral health care is delivered.” Examples include:
Medical and Religious Exceptions to Vaccine Mandate
In keeping with the federal Americans with Disabilities Act and Title VII of the Civil Rights Act and equivalent state laws, the rule carves out exceptions for individuals who are unable to be vaccinated because of a medical condition or sincerely held religious belief. Individuals seeking an exception must submit to their employer the corresponding exception request form required by the OHA.
An individual with a physical or mental impairment “that prevents the individual from receiving a COVID-19 vaccination” is eligible to seek a medical exception. This exception must be corroborated by a medical provider who is not the individual seeking the exception.
A religious exception is available to an individual who has a sincerely held religious belief “that prevents the individual from receiving a COVID-19 vaccination.” Individuals seeking this exception must describe on the OHA exception request form “the way in which the vaccination requirement conflicts with the religious observance, practice, or belief of the individual.”
Last week, the Oregon Employment Department announced that employees who are terminated for failure to comply with an employer’s vaccine mandate likely are not eligible for unemployment benefits, excluding those who have a medical or religious exception. However, the OED has not yet promulgated any rule excluding such individuals from benefits.
On August 18, 2021, President Joe Biden announced that the federal government would require nursing homes to require their staff to be fully vaccinated as a condition of participating in the Medicare and Medicaid programs. According to the announcement, the regulations “would apply to nearly 15,000 nursing home facilities, which employ approximately 1.6 million workers and serve approximately 1.3 million nursing home residents.” The Centers for Medicare & Medicaid Services expects to issue the new regulations in September 2021.
Key Takeaways for Oregon Healthcare Employers
- Healthcare employers must collect from all covered employees either (1) proof of vaccination status, or (2) documentation establishing that the employee qualifies for an exception to the vaccination requirement. Healthcare employers must maintain these records for two years at minimum and provide them to the OHA upon request.
- Healthcare employers cannot employ, contract with, or accept volunteer services from any individual who has failed to meet the rule’s requirements.
- Healthcare employers who grant exceptions must take reasonable steps to protect unvaccinated healthcare providers and staff from contracting and spreading COVID-19.
- Healthcare employers may choose to implement “more restrictive or additional requirements” such as documentation of a booster dose of the COVID-19 vaccine if that is recommended by the CDC.
- Healthcare employers may choose to enforce the rule earlier than October 18, 2021.
- Healthcare employers who violate the rule are subject to civil penalties of $500 per day per violation.
Have questions on the new vaccine mandate? Attend our September 14 webinar.
This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact Carlie Bacon, any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.