Last week, Governor Kate Brown announced that the State of Oregon would require that all health care workers be fully vaccinated against COVID-19 unless they could prove they were entitled to a religious or medical exception. The Oregon Health Authority (“OHA”) just released its administrative rule implementing the Governor’s announcement: effective October 18, 2021, health care workers and staff working in a health care setting must present documentation that they are fully vaccinated or that they are entitled to an exception. Medical and religious exemptions must be documented on specific forms prescribed by the OHA, available here. After that date, health care entities may not employ, contract with, or accept the volunteer services of an individual who cannot present such documentation. Below is a summary of additional details about the rule’s requirements.
Broad Applicability. The mandatory vaccine rule applies to all individuals, “paid or unpaid, working, learning, studying, assisting, observing or volunteering in a healthcare setting.” “Healthcare setting” is broadly defined to include “any place where health care, including physical or behavioral health care is delivered.” In addition to traditional medical facilities, the definition also includes providers of “alternative medicine such as acupuncture, homeopathy, [and] naturopathy” services.
Proof of Fully Vaccinated Status. As with prior OHA and Oregon Occupational Health and Safety rules, “fully vaccinated” means that at least 14 days have passed since the individual received the second dose of a two-dose vaccine (Pfizer/Moderna) or the first dose of a single-dose vaccine (Johnson & Johnson). Likewise, “proof of vaccination” means documentation issued by a government entity or health care provider that includes the worker’s name, date of birth, type of vaccine, date(s) the vaccine was given, and the name or location of the site where the vaccine was administered. A COVID-19 vaccination card or digital photo or printout from the OHA’s immunization registry satisfies the rule’s requirements.
Religious and Medical Exceptions. The rule recognizes exceptions to the mandatory vaccine requirement on religious or medical grounds. Health care workers who seek a religious exception must corroborate the request on a form prescribed by the OHA that is signed by the worker and that includes “a statement describing the way in which the vaccination requirement conflicts with the religious observance, practice, or belief of the individual.”
Similarly, health care workers who seek a medical exception must submit an OHA-approved form that is “signed by a medical provider, who is not the individual seeking the exception” and that “certif[ies] 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.” Copies of the forms are available on the OHA’s website.
The rule provides little guidance about the status of individuals who establish that they are entitled to an exception. It simply states that health care entities “must take reasonable steps to ensure that unvaccinated healthcare providers and healthcare staff are protected from contracting and spreading COVID-19.” Realistically, this may mean that employees who can establish entitlement to a religious or medical exception cannot work in direct patient-care roles and must be reassigned or placed on leave.
Recordkeeping Requirements. Health care entities must maintain documentation of workers’ fully vaccinated status and/or their documentation regarding religious and medical exceptions for at least two years, and must provide such documentation to the OHA upon request.
Additional Employer-Imposed Requirements. The rule makes clear that employers are free to impose additional rules regarding COVID 19 vaccine requirements, including requiring compliance prior to October 18, 2021, and requiring additional or booster doses of the vaccine.
Separately, the Oregon Employment Department just announced that employees who are terminated for failure to comply with a vaccine mandate may not be able to collect unemployment benefits.
If you have questions about the new rule, or anything else regarding the ever-shifting COVID 19 landscape in the workplace, please feel free to contact any of our labor and employment attorneys.