Law Alert: COVID-19 Vaccine FAQs
Monday, June 21, 2021
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Law Alert: COVID-19 Vaccination FAQ
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The COVID-19 requirements in the workplace have changed recently, largely driven by easing requirements for fully vaccinated employees. Member companies have had many questions about how to incorporate these changes into their workplaces. Below are responses
to some of the most frequently asked questions by members.
What is the specific guidance from Oregon Health Authority (OHA) and OR-OSHA regarding fully vaccinated employees?
OHA issued guidance stating that fully vaccinated employees do not need to wear a mask, face coverings, or face shield or follow social distancing requirements at work, except in certain settings
(e.g., healthcare, K-12 schools, businesses that require masks, face coverings, or face shields for everyone, including fully vaccinated individuals). Employees need to provide proof of vaccination to be
eligible for this exemption.
OHA states employees are fully vaccinated when they have received both doses of a two-dose COVID-19 vaccine or one dose of a single-dose vaccine and at least 14 days have passed since the employee’s
final dose of the COVID-19 vaccine.
Employers who want to take advantage of this exemption need to develop a policy for checking for vaccination status and requesting and reviewing proof of vaccination.
OR-OSHA adopted OHA guidance regarding fully vaccinated employees. Employers who provide this exemption to fully vaccinated employees are still required to follow all other aspects of OR-OSHA’s permanent
rules (OAR 437-001-0744),
including masking and physical distancing requirement for unvaccinated employees, cleaning and sanitizing in the workplace, HVAC maintenance and inspections, posters and signage, employee training requirements,
and infection control plans.
Employers have the right to continue to require all employees, including fully vaccinated employees, to wear masks, face coverings, or face shields and follow social distancing requirements at their
discretion and in accordance with the OHA’s Statewide Reopening Guidance — Masks, Face Coverings, Face Shields.
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What must an Oregon employer do to verify that employees are fully vaccinated?
Employers need to ask employees for proof of their vaccination status. Acceptable forms of documentation include:
- A vaccination card, or photo of the card, that includes an individual’s name, the date of vaccinations (or vaccination if it is a single-dose vaccine) and the location or site of the vaccine(s).
- A vaccination record shown through a vaccination application on a smartphone, computer or tablet.
- Documentation provided by a tribal, federal, state, or local government, or health care provider with the individual’s name, the date of vaccinations (or vaccination if it is a single-dose vaccine) and
the location or site of the vaccine(s).
Employees who claim to be vaccinated but fail to provide proof of vaccination must continue to wear masks, face coverings, or face shields and follow social distancing requirements in accordance with OHA’s Statewide Reopening Guidance — Masks, Face Coverings,
Face Shields.
It is recommended that employers retain copies of employee’s proof of vaccination for inspection by OR-OSHA officials. Given proof of vaccination is considered a medical record, all documentation
should be retained in a separate confidential file with other employee medical records.
Employers should not be asking for any additional medical information or documentation from employees (beyond what is listed above) which may elicit information about an employee’s medical condition
or disability.
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Does Washington have similar guidance regarding fully vaccinated employees?
The Washington Department of Labor and Industries issued an order allowing fully vaccinated employees to forego the masking and physical distancing requirements if proof of vaccination is provided
to the employer, except in certain settings (e.g., healthcare, schools).
Employees are fully vaccinated two weeks after the single-dose Johnson & Johnson vaccine is administered or two weeks after the final dose of the Pfizer or Moderna two-dose vaccine is administered.
Employers are required to confirm employees are fully vaccinated and collect proof of vaccination, but unlike Oregon, a signed attestation from an employee is an acceptable proof of vaccination. Employers
must also show they have verified vaccination status of their employees by keeping a log or other tracking system (e.g., marking ID badges, daily vaccination status checks).
In Washington, employers have the right to continue to require all employees, including fully vaccinated employees, to wear masks, face coverings, or face shields and follow physical distancing requirements
at their discretion.
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What legal considerations should an employer make when requiring or incentivizing employees to get vaccinated?
The EEOC has stated that employers can require all employees physically entering the workplace be vaccinated. Reasonable accommodations may need to be made for employees who are unable to get vaccinated
based on their disability, pregnancy, or religious beliefs.
Regarding disability and pregnancy, employers need to show an undue hardship would be caused if they allowed an unvaccinated employee to enter the workplace. In this case, showing an undue hardship
is a high bar and is often difficult to prove. Alternatively, for religious beliefs, employers also need to show an undue hardship, but it is any hardship beyond a de minimis amount. UEA attorneys are available
to provide compliance guidance regarding your obligation to provide reasonable accommodation for employees who cannot be vaccinated due to disability, pregnancy, or religious beliefs.
If employers are mandating employees get vaccinated, time spent getting vaccinated could be compensable time, especially if an hourly non-exempt employee is getting vaccinated during their normal
work hours. UEA attorneys are available to advise members regarding the compensability of time spent getting a mandatory vaccination.
Instead of mandating vaccinations, employers are also free to incentivize employees to get vaccinated. The EEOC has also stated that employers are free to incentivize employees for getting vaccinated.
Employers may award employees bonuses for getting vaccinated, give employees time off as a reward for getting vaccinated, or hold a raffle for vaccinated employees.
If an employee is administering the vaccinations on the worksite or having the vaccinations administered by the employer’s agent, the EEOC has stated that the incentives cannot be “so substantial
as to be coercive.” The EEOC did not define how “substantial” the incentive must be to be coercive, so employers in this case need to be careful with the magnitude of their incentives.
Employers who have employees represented by a union will most likely need to discuss plans to mandate or incentivize represented employees to get vaccinated with the union prior to implementation.
Mandatory or incentivized vaccination programs would likely be a term or condition of employment, and therefore a mandatory subject of bargaining with the union.
UEA attorneys are available to address your on-going questions and concerns regarding COVID-19 related laws and restrictions. We will also keep our members apprised of any new developments in this
area, such as the changes governor Brown mentioned will take effect when Oregon reaches the 70% vaccination level.
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UEA Has Options for Onsite Vaccination Clinics!
If your company is interested in holding an onsite vaccination clinic, please reach out to Dan Blair at dblair@unitedemployers.com for more information.
Dan will review your company’s needs and go over the legal aspects of offering an onsite clinic, and can then connect you with a partner organization who will come onsite to administer the vaccine.
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