Thoughts on Covid-19 vaccination requirement for employees

JS
Jacquilyn Saito
Wed, Dec 9, 2020 5:17 PM

Heather:
Last month, Tamara Jones presented on this topic at the Association of Oregon Counties annual conference.  She has kindly agreed to share her insight (below) and her PowerPoint slides.  Tamara is Deputy General Counsel for Citycounty Insurance Services (CIS).  Note that this is not intended as legal advice, but food for thought to keep the conversation going on this issue.

From Tamara Jones:

I researched and addressed this issue when I presented at the AOC conference recently - my slides on this particular subject are attached.

There is nothing in the law that prevents employers from requiring employees to get vaccinated (except for health care workers and public safety personnel - defined in the law as you'll see in the slides).  But my conclusion is even if an employer can require vaccines, should they?  The employer still has to be mindful of PECBA issues, disability accommodation issues, and religious accommodation issues, and that doesn't get to the issue of whether requiring vaccines might cause some employees to think twice about working for  particular employer.  I also think there could be a potential for a WC claim here, if an employee had a bad reaction to a COVID-19 vaccination shot that the employer required the employee to get.

I have a question about whether the Oregon Safe Employment Act's requirement to provide a safe workplace could be used against employers who don't require vaccines.  OR-OSHA hasn't said anything about this.  Federal OSHA said that employers should encourage employees to get flu shots in 2009, but they didn't say anything then or since then to indicate that they would require employers to mandate flu shots for employees.  My conclusion is that it's unlikely, but I'm going to continue to monitor the situation.

My advice for employers is to treat this like they would flu shots: Offer a voluntary COVID-19 vaccination clinic at no charge to the employees.  Let the employee decide.  This is consistent with EEOC guidance, and OR-OSHA guidance on flu shots.

Heather: Last month, Tamara Jones presented on this topic at the Association of Oregon Counties annual conference. She has kindly agreed to share her insight (below) and her PowerPoint slides. Tamara is Deputy General Counsel for Citycounty Insurance Services (CIS). Note that this is not intended as legal advice, but food for thought to keep the conversation going on this issue. >From Tamara Jones: I researched and addressed this issue when I presented at the AOC conference recently - my slides on this particular subject are attached. There is nothing in the law that prevents employers from requiring employees to get vaccinated (except for health care workers and public safety personnel - defined in the law as you'll see in the slides). But my conclusion is even if an employer can require vaccines, should they? The employer still has to be mindful of PECBA issues, disability accommodation issues, and religious accommodation issues, and that doesn't get to the issue of whether requiring vaccines might cause some employees to think twice about working for particular employer. I also think there could be a potential for a WC claim here, if an employee had a bad reaction to a COVID-19 vaccination shot that the employer required the employee to get. I have a question about whether the Oregon Safe Employment Act's requirement to provide a safe workplace could be used against employers who don't require vaccines. OR-OSHA hasn't said anything about this. Federal OSHA said that employers should encourage employees to get flu shots in 2009, but they didn't say anything then or since then to indicate that they would require employers to mandate flu shots for employees. My conclusion is that it's unlikely, but I'm going to continue to monitor the situation. My advice for employers is to treat this like they would flu shots: Offer a voluntary COVID-19 vaccination clinic at no charge to the employees. Let the employee decide. This is consistent with EEOC guidance, and OR-OSHA guidance on flu shots.