Updated: Nov 9, 2021
Per the recently issued Oregon Health Authority Rule 333-019-1010, healthcare providers and staff in Oregon are required to be fully vaccinated against COVID-19 - or provide documentation of a valid medical or religious exception - by October 18, 2021. While the burden falls on the provider to provide documentation of valid exceptions, Oregon healthcare employers are responsible for having the required documentation on file by this date. With penalties of up to $500 per day per instance for non-compliant employers, it’s critical that Oregon healthcare organizations and providers understand and correctly apply the COVID-19 vaccine requirement rule.
Who Is Subject to Oregon’s COVID-19 Vaccine Requirement?
The OHA vaccine requirement rule applies to healthcare providers and staff who work in a healthcare setting. In the rule, “healthcare providers and healthcare staff” is defined as “...individuals, paid and unpaid, working, learning, studying, assisting, observing or volunteering in a healthcare setting providing direct patient or resident care or who have the potential for direct or indirect exposure to patients.” This means that even unpaid interns and volunteers are required to be vaccinated against COVID-19. The requirement also applies to those in non-medical positions (such as receptionists and janitors) who could come in contact with patients. Healthcare employees working remotely with no patient contact are not required to be vaccinated.
“Healthcare setting” is defined as anywhere where physical or behavioral health services are administered. This includes (but is not limited to) hospitals, doctor’s offices, pharmacies, residential facilities, group homes, counseling offices, mobile clinics, and dental offices. Home healthcare workers who care for patients in the patients’ own homes are not subject to the rule (unless the patient’s home is a licensed healthcare facility.) Healthcare employers should contact an Oregon healthcare attorney if they are unsure whether or not their healthcare organization or healthcare staff are subject to the OHA vaccine requirement rule.
Religious and Medical Exceptions to Oregon’s Healthcare Vaccine Requirement Rule
While “healthcare providers and staff” and “healthcare settings” are clearly defined in the vaccination rule, there is less explicit guidance regarding the medical and religious exceptions to Oregon’s healthcare COVID-19 vaccination requirement. The rule states that to qualify for a medical exception an individual must have a “physical or impairment that prevents the individual from receiving a COVID-19 vaccination.” However, there is no further guidance as to what conditions contraindicate a COVID vaccine - this is presumably left up to an individual’s own healthcare provider. Healthcare employees wishing to exercise a medical exception should have their healthcare provider complete OHA Form 3870 (or a similar form). Healthcare providers cannot complete a medical exception form on their own behalf.
An individual seeking a religious exception to Oregon’s healthcare vaccination rule must have a “sincerely held religious belief” and include “a statement describing the way in which the vaccination requirement conflicts with the religious observance, practice, or belief of the individual.” Under Title VII of the Civil Rights Act, sincerely held religious beliefs “include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” The term “religion” includes all aspects of religious observance and practice, as well as belief, and the U.S. Supreme Court has differentiated religious beliefs from personal beliefs, which are “essentially political, sociological, or philosophical.” Still, there is a lot of ambiguity in terms of what constitutes a valid religious exception to Oregon’s healthcare vaccine requirement.
The OHA explicitly states that its COVID-19 vaccine requirement rule does not exempt employers from complying with any other state or federal regulations or rules, including the requirements of the Americans with Disabilities Act and the aforementioned Title VII of the Civil Rights Act. Thus, it’s very important that healthcare organizations carefully evaluate exception requests and consider the potential outcome for an organization if a request for exception is denied. While employers may have grounds to deny a request if it causes undue hardship for the organization, they could face lawsuits or other adverse outcomes if the exception requests are not handled appropriately and consistently.
Testing of Unvaccinated Healthcare Staff in Oregon
The Oregon healthcare COVID-19 vaccine mandate requires that if healthcare employers grant an exception to the vaccine mandate they “must take reasonable steps to ensure that unvaccinated healthcare providers and healthcare staff are protected from contracting and spreading COVID-19.” For example, a healthcare employee may choose to test unvaccinated healthcare staff weekly. However, this raises additional concerns for healthcare employers in terms of the logistics and costs of COVID testing unvaccinated healthcare employees, and it is unclear who is responsible for paying for mandated COVID tests. The Fair Labor Standards Act states that it is an impermissible wage deduction to require employees to pay expenses “considered primarily for the benefit of the convenience of the employer,” and that the employer must pay for the costs of requiring an employee to visit a healthcare professional of the employer’s choice. Although the Equal Employment Opportunity Commission (EEOC) has not taken a position on this issue, requiring unvaccinated healthcare staff to pay for their own COVID testing could be risky for employers. Alternatives include paying for the employees’ COVID testing, encouraging employees to visit free testing sites, or administering tests onsite.
Oregon Healthcare Employers Should Have a Clear Policy and Procedure Regarding Oregon’s Healthcare Provider Vaccine Requirement
As explained here, it’s very important that Oregon healthcare employers appropriately and consistently comply with Oregon’s healthcare employee vaccine requirement. It is highly recommended that all organizations employing healthcare providers and staff adopt a clearly written COVID Vaccination Policy pursuant to the new OHA rule. Contact experienced business and healthcare law firm Zupancic Albin Law for assistance drafting a comprehensive COVID policy that’s tailored to your specific organization’s needs, or with any other questions about your obligations under Oregon’s healthcare provider COVID-19 vaccine requirement rule.