Can Oregon Employers Require COVID-19 Vaccination? It is complicated

Most Oregonians won’t be able to get a COVID-19 vaccine for months. But employers across the state are already wondering how to approach immunization – particularly, whether it’s providing incentives or even mandating vaccines for employees.

“I hear a lot of angsty conversations,” said Karen O’Connor, partner at Stoel Rives LLP law firm, specializing in labor and employment issues.

She said employers in the hospitality industry such as restaurants, breweries and hotels want workers to be vaccinated, so they can assure the public that it is safe to enter. Employers who run facilities criticized by the coronavirus – such as food processing and meat packing plants – want to limit the potential for future outbreaks.

But when it comes to COVID-19 vaccination, resources are low and reluctance to vaccinate is real. Employers balance employee safety and morale with the culture of their workplaces.

So what should employers know about the requirement or reward for immunization?

Let’s start with what the law allows.

Can Oregon employers REALLY force workers to get COVID-19 shots?

In general – yes.

There are however exceptions and a possible footnote. More on that later.

First, the federal government has made it clear that businesses can require their employees to be vaccinated against COVID-19. This has been discussed in recent guidelines from the United States Equal Employment Opportunity Commission (EEOC). The same is true under state law, as directed by the Oregon Bureau of Labor & Industries (BOLI).

The backdrop is that Oregon is an unlimited employment state. This means that private sector employers who do not have unionized workers can set terms of employment.

“If any of those conditions are that the employee needs to be vaccinated, the employer can impose it,” said O’Connor, counsel for Stoel Rives.

For example, in Oregon, an employer who needs the vaccine could fire a worker who refuses to get it because he does not want it.

But Cristin Casey, acting director of BOLI’s civil rights division, warned that many workers would be exempt from such a requirement.

“There is a difference between an employee who doesn’t want to be vaccinated and an employee who cannot be vaccinated for a protected reason,” she says.

So, let’s look at these protected reasons.

Who would be exempt if an employer required vaccination against COVID-19?

In Oregon, there are three main categories of exemption.

1) Union members – potentially. Collective agreements with employers may explicitly prohibit compulsory vaccinations.

(This is not the case for the large grocery union UFCW Local 555, whose members work in the Fred Meyer, QFC, Albertsons and Safeway stores. They checked their contracts for us – no mention of vaccines. . union wants vaccination as soon as possible.)

2) Health workers – surprisingly. You can’t miss the relief as frontline healthcare workers start getting vaccinated across the country. But in Oregon, healthcare workers can’t mandatory to get a COVID-19 vaccine as a condition of their work.

“That’s really an interesting irony, isn’t it?” O’Connor said. “Of all the people… you would most like to be vaccinated and protected, you would think that these are the people who have to see everyone to give them the vaccines.”

Decades-old state law, however, states that employers of healthcare workers must provide – but not mandate – immunization against infectious diseases. These employers can only require vaccination if state or federal law requires otherwise. (The COVID-19 vaccination is not.)

Natalie Pattison, a lawyer at Barran Liebman LLP, said employers in Oregon should pay attention to this law, which defines “healthcare worker” quite broadly.

“Obviously, these are the workplaces that would be the most likely to want to require it and be the most at risk,” she said.

3) People with disabilities or with sincere religious beliefs

This is where we come to more fundamental rights.

If an employee has a disability that prevents vaccination, their employer must provide reasonable accommodation – if the employer can do so without undue hardship. Employees with sincere religious beliefs that prohibit vaccination are afforded similar protection.

These rights are enshrined in federal law, namely the United States Disability Act and Title VII of the Civil Rights Act.

What could the hosting look like? An employee who cannot be vaccinated can continue to work from home or wear a mask at work. They can be assigned to a satellite office or reassigned to a position that does not require public interaction.

“The employee doesn’t necessarily have the right to the accommodation they want,” said O’Connor.

Isn’t that theoretical? COVID-19 vaccines are so rare. Are Oregon Employers Really Taxing Them?

Not really. Although a large North West law firm has just opened the door.

Davis Wright Tremaine LLP announced last week that only lawyers and vaccinated staff will ultimately be allowed to work from the office or attend staff events. “In the coming months, proof of vaccination will be required,” the firm said by email.

But at this point, employers are more likely to reward vaccination. This is the approach taken by Rachel Bloom, even though her employees are part of a priority group.

“It’s difficult to mandate something that is difficult to obtain,” she said.

Bloom owns a Portland-based business called Full Life, which helps people with developmental disabilities find employment in the community. Many of her clients live in group homes, where the virus poses a serious threat.

“If a member of my staff walks in, has COVID and passes it on to one person in a group home, it impacts the other four or five people who live in that group home,” she says. “Plus all the staff. Plus the owners.

Thus, Bloom decided to give a day of vacation to each employee who performs two rounds of vaccination.

“Our staff with COVID could impact many more people. And make it even more deadly, ”she said.

Some national companies with workers in Oregon offer similar incentives. Trader Joe’s said he would give crew members two hours of regular pay per dose of vaccine received. Dollar General said he would give frontline workers four hours of regular pay after completing the COVID-19 vaccination.

The math for businesses may change as vaccines become more widely available.

Scott Kirby, chief executive of United Airlines, recently told employees that the company may eventually require vaccination.

“Because I have confidence in the safety of the vaccine – and I admit it’s controversial – I think the right thing to do is for United Airlines, and other companies, to demand the vaccines and make it mandatory, ”he told CNBC.

Meanwhile, companies that offer vaccination incentives should do so with caution.

I own a business. I want to encourage employees to get vaccinated against COVID-19. What should I know?

First of all, you need to be careful not to go against Oregon’s equal pay protections.

The state’s pay equity law requires that employees who perform work of a comparable nature be paid equally if they have similar training and experience.

Could a one-time bonus for vaccinated workers be enough to trigger pay equity concerns? O’Connor said she doubted providing a few hours of extra pay would cross that line.

The big red flag here is that rewarding one group of workers over another could prove to be discriminatory.

“An employer could not offer to pay more for employees who agree to receive the vaccine because then they could discriminate against people with disabilities or with sincere religious beliefs who cannot get the vaccine,” said Casey of the civil rights division of BOLI.

The agency suggests structuring incentives to be more inclusive. For example, an employer can give everyone a bonus once a certain percentage of employees get vaccinated or get an exemption because of a disability or good faith religious belief.

In short, if you offer incentives to employees who get tricked, you should also offer them to people who for medical or other reasons cannot.

What is that footnote you mentioned?

It’s unclear what impact this footnote might have. After all, it’s a new pandemic, with new vaccines. No employer has yet sued for the dismissal of an employee who refuses the vaccination because of his personal preferences.

So this is still a hypothetical situation, but here’s what you need to know:

The COVID-19 vaccines currently available from Pfizer-BioNTech and Moderna have received emergency use authorization from the Food and Drug Administration. This means that before getting vaccinated, people are supposed to be informed that they can refuse the vaccine.

This has led to a debate in the legal community. Let’s say an employer demanded vaccination against COVID-19, but an employee refused, citing the right to refuse an emergency vaccine. Let’s say the employer then fired the employee. Could the employee claim to have been wrongfully dismissed in violation of public order?

“This is just untested legal theory and all employers at this point are a potential test case,” Pattison said, “so we really don’t know if this has teeth.”

BOLI said it is evaluating information related to emergency vaccine use.

For now, lawyer O’Connor believes many employers can just… take a break. The deployment of the vaccine will take a long time. Attitudes are already changing.

“As soon as employers start saying you have to do it, people fall back into their corners,” she says. “If we can all just wait for it to be available, then as many of us as we can go get it, get it and see what it means, that may be enough.”

Editor’s Note: The three law firms mentioned in this article – Stoel Rives LLP, Barran Liebman LLP, and Davis Wright Tremaine LLP – all provide legal advice outside the OPB.