During Tonkon Torp’s 2021 Annual Labor & Employment Event, held virtually on June 9, attorney Erin Roycroft led a discussion on vaccination policies in the workplace.
One of the burning questions in employment law today is whether an employer can require their employees to get a vaccine. The answer is generally yes, with exceptions for healthcare and emergency workers, people with disability, and people with sincerely-held religious beliefs. While the exception for health care and emergency response workers is codified in Oregon law, all other Oregon employees fall under EEOC guidance, which states that employers may require proof of vaccination as long as they provide reasonable accommodation for disability and sincerely-held religious beliefs.
Erin encouraged the participants to help their employees understand how to request an exemption or accommodation by offering clear instruction and ample communication. She noted that navigating disability exemptions under the ADA includes complying with confidentiality requirements, and that, although an employer generally may terminate an employee who is a “direct threat” to the safety and well-being of themselves or others, determining if an unvaccinated employee qualifies as a “direct threat” is a complicated legal analysis that should be done in consultation with an attorney. Regarding a religious exemption based on Title VII accommodations for sincerely-held religious beliefs, employers should generally accept an employee’s claim of a religious belief and will need to carefully evaluate what accommodation they can provide that does not also present an undue hardship to the employer. Employers that are unsure how to handle a request for an accommodation should work closely with their employment attorney.
Erin also reviewed the various issues employers may encounter if they choose to require vaccinations. For example, there are potential legal risks when requiring vaccines that are FDA-approved only for emergency use. Other considerations for a mandatory vaccine policy include: compensating employees for vaccine appointments during working hours, understanding how adverse reactions might trigger workers’ compensation, and how such a policy would work with a unionized workforce – including what are the subjects of mandatory bargaining. A popular alternative to a vaccine mandate is to offer incentives to employees who get vaccinated, but employers should be mindful not to offer incentives that are coercive or run afoul of equal pay and antidiscrimination laws.
Erin is an associate in Tonkon Torp’s Labor & Employment Practice Group. She joined the firm from the Oregon Court of Appeals, where she served as a judicial clerk to the Honorable Scott Shorr. During her two-year clerkship, Erin worked on a number of criminal, civil, and administrative appeals involving a variety of issues, such as contracts, insurance, and property disputes.