Ore. employers can require COVID-19 vaccinations, with some exceptions, state says
The Office for Employment and Industry answers frequently asked questions
SALEM, Ore. (KTVZ) – Oregon employers may require workers to get a COVID-19 vaccine as soon as it becomes available, with a few exceptions, the state Bureau of Labor and Industry said Tuesday as it set out more details.
“COVID-19 vaccines are becoming more and more available by the day, and vaccinations are key to getting Oregonians back to a life less constrained by the pandemic,” says Labor Commissioner Val Hoyle. “We all have to do everything we can to slow the spread of COVID-19 as quickly as possible – we’re in it together.”
The federal government has given employers guidelines on how to request vaccines, and Oregon law generally complies with those guidelines. With a few exceptions, employers can require workers to receive a COVID-19 vaccine.
When employers don’t need vaccines, there are many other COVID precautions employers can take to protect their workers and customers. This includes continued mask requirements and physical distancing, remote working, and proactive vaccine education.
Employers cannot request COVID-19 vaccinations if they employ certain types of workers or have contractual restrictions. Workers can also request exemptions or accommodation based on religious beliefs or a disability that prevents them from receiving a COVID-19 vaccine.
Under state law, workers who do not require a vaccine include those licensed or certified to provide healthcare services, healthcare facility workers, licensed healthcare providers or clinical laboratories, firefighters, law enforcement officers, correction officers, or probation officers.
For employers with unionized workers, a collective agreement could directly prohibit compulsory vaccinations in the workplace. An individual employment contract could also expressly prohibit vaccines, but it is far less common.
According to civil rights and disability laws, employers with mandatory COVID-19 vaccination policies must consider requests for exemptions for those with sincere religious beliefs and for those with a disability who prevent them from receiving a COVID-19 vaccination.
Employers are not required to grant an exemption if it presents “undue hardship” to the company or a “direct threat” to the safety of the worker or other person.
Frequently asked questions and further information for employees and employers can be found below and on the BOLI website at https://www.oregon.gov/boli/workers/Pages/covid-vaccine.aspx.
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Frequently asked questions (also available on the BOLI website)
For workers
My employer ordered that I get a COVID-19 vaccine. Where can I get one from and how do I provide evidence?
Until the virus is available to the general public, contact your doctor for current eligibility to receive the COVID-19 vaccination and keep in touch with your employer – particularly with regard to any records that require a review of the Expect vaccination.
My employer prescribed a vaccine, but I don’t want one – what do I do?
With a few exceptions, employers have the right to request a COVID-19 vaccination. If the reason you do not want to be vaccinated is due to a genuine religious belief or a disability, you can contact your employer for appropriate accommodation.
My employer prescribed a vaccine but I can’t get one because I’m allergic – what do I do?
Two different COVID-19 vaccinations are currently available, and more are in preparation. Depending on your allergy, it is possible that one of the other formulations will be tolerable. If not, discuss your concerns with your employer to see what other accommodations are possible.
My employer doesn’t ask anyone to get the COVID-19 vaccine, and they don’t need masks or social distancing at work. What should I do?
Employers are not required to commission the vaccine. You could certainly get the vaccine yourself when it becomes available and encourage your staff to do the same. Your employer needs to ensure that you have a job that is free from known hazards. If your employer or workplace is not following the governor’s instructions to protect against COVID-19, or if you think your workplace is not safe, you can file a complaint with OSHA here: https://osha.oregon.gov/workers / Pages /index.aspx.
Can employers offer their employees a financial incentive to get vaccinated against COVID-19?
The answer here depends on the type of incentive being offered. The Oregon Equal Pay Act requires equal pay for comparable work. If vaccinated employees are paid more than others who were unable to receive the vaccination (due to religious belief or disability), this can even result in liability as a one-time bonus.
Employers may be able to offer incentive programs that do not lead to wage differentials (e.g., all workers may receive a bonus once a certain percentage of the workforce is either given the vaccine or is exempt due to good religious belief or disability). Even so, employers need to ensure that individuals are not turned away because of their religion or disability.
for employer
I want to prescribe vaccines for my employees. What are the first steps I should take?
As the availability of COVID-19 vaccination increases, it is time to start planning vaccination requirements.
- Provide as much advance notice and information as possible to employees. Information on the development and safety of COVID-19 vaccines can be found here.
- Enter a path (or several paths) for questions. While few employees are exempt from required vaccinations, you want to make sure that employees in need of shelter have a clear path to continue this conversation.
- Consider whether you would like to have the vaccination on site / with a contractor or whether employees need to get the vaccination from their own healthcare provider. Requiring employees to receive COVID-19 vaccination from their own providers reduces the possibility of pre-vaccination screening triggering ADA restrictions on disability-related requests.
In our office, employees must be given vaccines. Do we have to pay them for the time to get the vaccine?
Depends on. Getting a vaccination isn’t a medical exam, but it is likely medical treatment. According to the Wage and Hour Act, the time that an employee waits and receives medical assistance during the employee’s normal working hours on days when the employee works, on the company premises or on instructions from the employer, would have to be paid. OAR 839-020-0046 (2). Conversely, if an employee chooses to get a required vaccination outside of business hours and off-premises, the time does not have to be paid for. However, an employee who elects to have a required vaccination off-site may take any available Oregon sick leave during work hours. (Sick leave must be paid for by employers with 10 or more Oregon employees – six or more if the organization has a Portland office.)
I have decided not to prescribe vaccines as our employee contract forbids it. What other steps can I take to minimize the risk of COVID-19 and / or encourage employees to receive the vaccine?
Widespread vaccination is our best route to normalization. However, certain types of workers may not need to receive a vaccine. As you noted earlier, this includes employees working under a contract that specifically forbids making vaccination a condition of employment.
Employers can certainly continue to call for measures that have already been recommended to protect both employees and customers from COVID-19. These include the requirement of masks, the creation of physical distancing, the encouragement of remote work and proactive education. Of course, as the vaccine becomes more widely available, you can consider allowing workers to receive the vaccine during working hours.
Can employers offer their employees a financial incentive to get vaccinated against COVID-19?
The answer here depends on the type of incentive being offered. The Oregon Equal Pay Act requires equal pay for comparable work. If vaccinated employees are paid more than others who were unable to receive the vaccination (due to religious belief or disability), this can even result in liability as a one-time bonus.
Employers may be able to offer incentive programs that do not lead to wage differentials (e.g., all workers may receive a bonus once a certain percentage of the workforce is either given the vaccine or is exempt due to good religious belief or disability). Even so, employers need to ensure that individuals are not turned away because of their religion or disability.
EMPLOYEE EDUCATION: Just as employers educated workers during this pandemic – through masks, hand washing, social distancing – employers can proactively educate and promote vaccination. As more vaccines become available, employers may want to consider local vaccination events, as many do with the annual flu vaccine.
We have a member of staff who has already told us that he has a disability that is preventing him from receiving a vaccine.
Under the guidance of the EEOC: “If an employer determines that a person who cannot be vaccinated because of a disability is a direct threat on the construction site, the employer cannot exclude the worker from the workplace or take other measures, unless there is no way that any reasonable precaution (without undue severity) can be eliminated or reduced so that the unvaccinated employee does not pose a direct threat. “Employers should not assume that a dismissal is necessary – talking to the employee concerned can reveal viable alternatives.
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