On September 14, labor and employment partners Kristin Bremer Moore and Clay Creps hosted a webinar to brief healthcare employers on the recent vaccine mandates by Governor Brown and President Biden. Oregon Health Authority (OHA) has released temporary rules to guide compliance and OSHA is expected to release its own rules soon.
The attorneys unpacked how OHA addresses the mandate in healthcare settings, who it considers employees and related staff, and documentation guidance. OHA has broadly interpreted healthcare settings as locations that include hospitals and clinics, long-term care facilities, inpatient and outpatient facilities, vehicle-based care sites, and medical office settings. Healthcare providers and staff are defined as any person in a healthcare setting who has the potential for direct or indirect exposure to patients, residents, or infectious materials. There are some exempted employee classes, such as 100% home-based workers.
Kristin and Clay have received many questions about the medical and religious exemptions to the mandate. In their presentation, they carefully discussed what these exemptions mean, what documentation and forms are required, and how to accommodate employees with approved exemptions. Medical exemptions are more straightforward, while evaluating exemption requests based on sincerely held religious beliefs should be a nuanced process. For healthcare employees, exemption statements must be submitted on an OHA-provided form, or a form seeking the same information. Guidance from the EEOC (as well as federal courts) and BOLI differs on the topic of requesting additional documentation or narratives when evaluating religious exemption claims, particularly when employee behavior is inconsistent with their provided statement. A sound practice is to examine each request on its merits individually, and ask for documentation to clarify inconsistencies.
To round out the briefing, the attorneys discussed how to provide accommodations for exempted employees, managing exceptions to the exemptions, compensating employees for time spent during work getting tested or vaccinated, and what process to follow should employees refuse to comply with the OHA rule. Before jumping into a Q&A, Kristin and Clay ended with a reminder that employers must follow existing personnel processes for disciplinary issues, enforce anti-discrimination laws, and ensure no retaliation is made against employees who question the legality of the mandates.
You can watch Kristin and Clay’s program on Oregon’s COVID-19 vaccine rules for healthcare workers here.