Vaccines may provide light at the end of the tunnel created by the COVID-19 pandemic, but not without presenting new challenges along the dark and winding path toward post-COVID “normalcy.” While the Centers for Disease Control and Prevention (CDC) has found that the currently available vaccines are highly effective at protecting against severe illness due to COVID-19, the CDC also cautions that even fully vaccinated people can spread certain variants of the virus to others. In light of Oregon’s ongoing coronavirus vaccination efforts, including now offering booster shots for certain populations, this article discusses recent administrative agency guidance, legal and practical considerations, and best practices to help defense practitioners and their private employer clients navigate potential liability as they create, implement, and update existing vaccination policies and procedures.
I. Employee Vaccination Policies: Three Approaches
With certain industry-specific exceptions, there are generally three vaccination policy approaches available to private employers:
Option 1: Require that all employees get vaccinated before returning to work on-site.
Option 2: Strongly recommend that employees get vaccinated before returning to work on-site.
Option 3: Remain neutral on the issue of vaccination, and let the employees decide for themselves.
While the particulars of any policy can be expected to vary by each unique workplace, these three approaches present both benefits and pitfalls. As an initial step, employers should conduct an individualized assessment of their workforce to weigh their options. Employers would be wise to consider a myriad of factors in developing an employee vaccination policy, including cost-effectiveness, ease of implementation, the anticipated efficacy of the policy in preventing COVID-19 exposure and transmission, workplace culture, employee morale and retention, requirements of third-party clients and customers, corporate social responsibility, and impact on productivity.
II. Recent Safety Guidance Impacting Vaccination Policies
Whatever approach is taken, no employee vaccination policy will relieve the employer of its obligation to maintain a safe workplace with respect to COVID-19. ORS 654.010 requires employers to implement systems and procedures reasonably necessary to maintain a “safe and healthful” place of employment for their employees, and to “do every other thing reasonably necessary to protect the life, safety[,] and health of such employees.”
Effective May 4, 2021, the Oregon Occupational Safety and Health Division (OR-OSHA) adopted OAR 437-001-0744 to address COVID-19 workplace risks. The rule outlines safety requirements applicable to all employers, details additional obligations for “exceptional risk” workplaces, and includes industry-specific appendices. The rule also addresses physical distancing; masks, face coverings, or face shields; cleaning and sanitization; exposure risk assessments; infection-control plans; mandatory employee training; COVID-19 testing; infection notification; and quarantining, among other requirements.
Subsequent to OR-OSHA’s adoption of OAR 437-001-0744, the Oregon Health Authority (OHA) issued interim guidance affording certain employers flexibility to relax the masking and social distancing procedures outlined in the rule for fully vaccinated employees, provided that the employer had a policy for verifying vaccination status and reviewed each employee’s proof of vaccination before allowing the employee to enter the workplace maskless and without observing social distancing. This relaxation of COVID-related precautions was short-lived, however, upon the arrival of the Delta, and now Omicron, variants.
In response to the recent surge in COVID-19 cases, OHA temporarily adopted OAR 333-019-1025, effective August 27, 2021, and OR-OSHA updated OAR 437-001-0744(3)(b) to mirror OHA’s rule. With some exceptions, the rule required individuals to wear a mask, face covering, or face shield—regardless of vaccination status—in indoor spaces (irrespective of social distancing) and in outdoor spaces if the individuals did not or could not consistently maintain at least six feet of distance from individuals outside of their household. Private employers responsible for indoor spaces, outdoor spaces, and organizers of outdoor events or gatherings were subject to additional requirements outlined in OHA’s rule. Effective November 23, 2021, however, OHA amended OAR 333-019-1025 to remove the outdoor mask mandate, and also to remove the additional requirements for employers responsible for outdoor spaces and organizers of outdoor events or gatherings. The indoor space requirements outlined in the OHA rule remain in place. Each employer must bolster its safety procedures and document measures taken to comply with applicable agency rules and guidance to protect itself from enforcement actions and negligent exposure claims.
III. The New Hybrid Workforce
In limited circumstances, an employee cannot be required to become vaccinated, including where an industry-specific statutory exemption applies under ORS 433.416(3), a collective-bargaining agreement or other employment contract forbids it, or the employer has granted the employee a reasonable accommodation excusing the employee from its mandatory vaccination policy. Bases for accommodation include reasons related to disability; sincerely held religious beliefs, practices, or observances; or pregnancy-related concerns.
Employers presented with a request for exemption from a vaccine requirement must conduct a case-by-case analysis to evaluate whether the requested accommodation would create an “undue hardship” or pose a “direct threat” to the safety of the employee or others, and must engage in an open dialogue with the employee to determine if other reasonable accommodations are possible before denying an accommodation request. Employers should ensure that their human resources employees and management are trained to properly handle accommodation requests. With the availability of exemptions, staggered vaccination timelines, and employees who decline vaccination in workplaces with permissive vaccination policies, employers should expect to have a hybrid workforce consisting of both fully vaccinated and unvaccinated employees at any given time. Vaccination policies should account for the mixed workforce by including a clear procedure for employees opting out or requesting exemption from vaccination, and employees should be kept informed of the same.
IV. Proof of Vaccination
Employers must comply with the Americans with Disabilities Act (ADA)’s requirements when collecting proof of vaccination. Requesting confirmation of vaccination is not an impermissible “disability-related inquiry” under the ADA; however, the employer must not obtain any other medical information about the employee as part of the proof of vaccination, and it must store any vaccination documentation privately and separately from the employee’s regular personnel file.
V. Resources, Incentives, and Other Encouragement
To prevent disparate impact discrimination claims and/or promote employee vaccination, employers may take proactive steps to remove barriers that would otherwise prevent certain employees from becoming vaccinated. For example, an employer may provide educational resources to its employees regarding available vaccines and the process for becoming vaccinated, assist employees in finding vaccination clinics and appointments, inform employees that the federal government is providing vaccines free of charge, and/or practice transparency regarding executive/managerial inoculations.
Moreover, the Oregon legislature recently passed HB 2818, allowing employers to offer employees paid time off and other incentives for providing proof of vaccination without violating pay equity laws. To prevent discrimination or retaliation claims, however, employers should ensure that any incentives offered to vaccinated employees are available to employees with religious or medical exceptions as well. If the employer offers an incentive for employees who voluntarily receive the vaccination through the employer or its agent, as opposed to the employee’s private health care provider or community pharmacy, the incentive must not be so substantial as to be “coercive.” Employers should also note that employees are entitled to use paid sick time if they receive mandatory vaccinations during working hours.
VI. Gathering Feedback
Employers can more accurately evaluate and mitigate the risks associated with each policy option by understanding office culture, gauging employee sentiment about proposed vaccination procedures before implementing them, and adjusting their policies, if necessary. An anonymous poll can be a useful tool.
Developing vaccination policies that satisfy an organization’s needs while protecting employee safety will continue to be a moving target for the foreseeable future. Regardless of the selected approach, to minimize legal risks employers should consider the above recommendations, be adaptable, and remain vigilant through continued monitoring of COVID-19 and vaccine-related statutes, agency guidance, and case law.
This article was printed in the Oregon Association of Defense Counsel's The Verdict (November 15, 2021, Issue 3) and is reproduced here with permission from OADC. Click the link below for a pdf version of the article: https://mcusercontent.com/8924c7097a17d521144a645fd/files/e76da4a9-aced-ca38-be3d-9593059bcbe0/Are_We_Out_of_the_Woods_Yet_Chinn.pdf