Can Oregon employers require COVID-19 vaccination? It’s complicated

Most Oregonians won’t be able to get a COVID-19 vaccine for months. But employers in the state are already grappling with how to approach vaccination — in particular, whether to provide incentives or even mandate the shots for employees.

“I am hearing a lot of anguished conversations,” said Karen O’Connor, a partner with the law firm Stoel Rives LLP who specializes in labor and employment issues.

She said hospitality employers such as restaurants, brewpubs and hotels want workers vaccinated, so they can assure the public that it’s safe to come in. Employers who run facilities slammed by the coronavirus — such as food processing and meatpacking plants — want to limit the potential for future outbreaks.

But when it comes to COVID-19 immunization, resources are low and vaccine hesitancy is real. Employers are balancing employee safety and morale with the culture of their workplaces.

So, what should employers know about requiring or rewarding vaccination?

Let’s start with what the law allows.

Can Oregon employers REALLY require workers to get a COVID-19 vaccine?

In general — yes.

There are exceptions, however, and a possible footnote. More on that later.

First, the federal government has made it pretty clear that businesses can require employees to be vaccinated against COVID-19. That’s discussed in recent guidance from the U.S. Equal Employment Opportunity Commission (EEOC). The same is true under state law, according to guidance from the Oregon Bureau of Labor & Industries (BOLI).

The backdrop is that Oregon is an at-will employment state. That means private sector employers who don’t have unionized workers can set the terms and conditions of employment.

“If one of those conditions is that the employee has to be vaccinated, then the employer can impose that,” said O’Connor, the attorney from Stoel Rives.

So, in Oregon, an employer who requires the vaccine could potentially fire a worker who refuses to get it because they don’t want it.

But Cristin Casey, the interim director of BOLI’s civil rights division, cautioned that many workers would be exempt from such a requirement.

“There’s a difference between an employee who doesn’t want to get a vaccine and an employee who cannot get a vaccine because of a protected reason,” she said.

So, let’s look at those protected reasons.

Who would be exempt if an employer required COVID-19 vaccination?

In Oregon, there are three main categories of exemption.

1) Union members — potentially. Collective bargaining agreements with employers may explicitly forbid mandatory vaccinations.

(That is not the case, by the way, for the big grocery union UFCW Local 555, whose members work at Fred Meyer, QFC, Albertsons and Safeway stores. They checked their contracts for us — no mention of vaccines. In fact, the union wants vaccination ASAP.)

2) Health care workers — surprisingly. You couldn’t miss the relief as frontline health care workers began getting vaccinated around the country. But in Oregon, health care workers can’t be required to get a COVID-19 vaccine as a condition of their job.

“It’s really such an interesting irony, right?” said O’Connor. “Of all the people … you would most want to be vaccinated and protected, you’d think it would be the people that have to see everybody to give them the vaccines.”

A decades-old state law, however, says that employers of health care workers must provide — but not mandate — immunization for infectious disease. These employers can only require vaccination if it is otherwise called for by state or federal law. (COVID-19 vaccination isn’t.)

Natalie Pattison, an attorney at Barran Liebman LLP, said Oregon employers should pay attention to this law, which defines “health care worker” fairly broadly.

“Obviously these are the workplaces that would be most likely to want to require it and be the most at risk,” she said.

3) People with disabilities or sincerely held religious beliefs

This is where we get to more fundamental rights.

If an employee has a disability that prevents vaccination, their employer must provide a reasonable accommodation — if the employer can do so without undue hardship. Employees with sincere religious beliefs that prohibit vaccination have similar protection.

These rights are enshrined in federal law, namely the Americans with Disabilities Act and Title VII of the Civil Rights Act.

What could accommodation look like? An employee who can’t be vaccinated might continue working from home or wear a mask at work. They might be assigned to a satellite office or reassigned to a job that doesn’t require public interaction.

“The employee isn’t necessarily entitled to the accommodation that they want,” said O’Connor.

Isn’t this theoretical? COVID-19 vaccines are in such scarce supply. Are Oregon employers actually mandating them?

Not so much. Although one big Northwest law firm just opened the door.

Davis Wright Tremaine LLP announced last week that only lawyers and staff who get vaccinated will ultimately be allowed to work from the office or attend staff events. “In the coming months, proof of vaccination will be required,” the firm said by email.

But at this point, employers are more likely to reward vaccination. That’s the approach Rachel Bloom took, even though her employees are in a priority group.

“It’s hard to mandate something that is hard to get,” she said.

Bloom owns a Portland company called Full Life, which helps people with developmental disabilities get jobs in the community. Many of her clients live in group homes, where the virus poses an acute threat.

“If one of my staff comes in, has COVID and passes it to one person in a group home, they’re impacting the four or five other people that live in that group home,” she said. “Plus, all the staff. Plus, the owners.”

So, Bloom decided to give a vacation day to every employee who completes two rounds of vaccination.

“Our staff having COVID could impact just so many more people. And make it even more deadly,” she said.

Some national companies with workers in Oregon are offering similar incentives. Trader Joe’s said it will give crew members two hours of regular pay per dose of vaccine received. Dollar General said it would give frontline hourly workers four hours of regular pay after completing COVID-19 vaccination.

The calculus for businesses might change when vaccines become more generally available.

Scott Kirby, the chief executive of United Airlines, recently told employees the company could eventually require vaccination.

“Because I have confidence in the safety of the vaccine — and I recognize it’s controversial — I think the right thing to do is for United Airlines, and for other companies, to require the vaccines and to make them mandatory,” he said according to CNBC.

Meanwhile, companies that provide incentives for vaccination should do so carefully.

I’m a business owner. I want to incentivize employees to get vaccinated for COVID-19. What do I need to know?

First, you need to be careful not to run afoul of Oregon’s equal pay protections.

The state’s pay equity law requires employees who perform work of a comparable nature to be paid equally if they have similar training and experience.

Could a one-time bonus to vaccinated workers be enough to trigger pay equity concerns? O’Connor said she doubted that providing a few hours of extra pay would cross that line.

The big red flag here is that rewarding one group of workers over another could prove discriminatory.

“An employer could not offer to pay employees more who agree to receive the vaccine, because they then could be discriminating against individuals with disabilities or sincerely held religious convictions who cannot get a vaccine,” said Casey of BOLI’s civil rights division.

The agency suggests structuring incentives to be more inclusive. For example, an employer might give everyone a bonus once a certain percentage of employees either gets vaccinated or gets an exemption based on disability or bona fide religious belief.

In short, if you’re going to offer incentives to employees who get jabbed, you should also give them to people who, for medical or other protected reasons, cannot.

What is that footnote you mentioned?

It’s unclear what impact this footnote could have. After all, this is a new pandemic, with new vaccines. No employer has yet gone to court for firing an employee who declines vaccination because of personal preference.

So it’s still a hypothetical situation, but here’s what to know:

The COVID-19 vaccines currently available from Pfizer-BioNTech and Moderna received emergency use authorization from the Food and Drug Administration. That means before people get vaccinated, they are supposed to be informed they can refuse the shot.

That has led to some debate in the legal community. Say an employer required vaccination for COVID-19, but an employee declined, citing the right to refuse an emergency use vaccine. Say the employer then fired the employee. Could the employee claim they had been wrongfully terminated, in violation of public policy?

“It’s just completely untested legal theory and all employers at this point are a potential test case,” said Pattison, “so we really don’t know whether that has any teeth to it.”

BOLI said it is evaluating information related to the emergency use of vaccines.

For now, lawyer O’Connor thinks many employers can just … pause. The vaccine rollout will take a long time. Attitudes are already changing.

“As soon as employers start saying you have to do it, people retreat to their corners,” she said. “If we can all just wait for it to be available and then as many of us as can go get it, get it and then we see what that means — that may be enough.”

Editor’s note: The three law firms mentioned in this piece — Stoel Rives LLP, Barran Liebman LLP and Davis Wright Tremaine LLP — all provide outside legal counsel to OPB.