Despite a push to get Oregonians vaccinated, there are exemptions

Joseph Haddad is an employment attorney for JJH Law in Portland. He said many employers will likely face a dilemma as more people return to work during vaccine rollout.

Posted: Feb 6, 2021 9:25 AM
Updated: Feb 7, 2021 7:11 PM

PORTLAND, Ore. — Despite Gov. Kate Brown's push for educators to have COVID-19 vaccination priority, many in that group could be exempt from vaccine requirements.

The Oregon Bureau of Labor and Industries (BOLI) outlines employer rights online, explaining for the most part, employers can mandate vaccinations.

Joseph Haddad is an employment attorney for JJH Law in Portland. He said many employers will likely face a dilemma as more people return to work during vaccine rollout.

"Termination certainly could be an option," he said of employees who opt to skip vaccination.

However, Haddad urged a more balanced approach. For example, employers can require unvaccinated staff to work from home or follow stricter safety protocols with masks and protective gear.

A detailed OPB report also highlighted employers that plan to provide incentives to staff who get vaccinated.

On the national level, United Airlines CEO Scott Kirby said corporate America should make employee vaccinations mandatory.

"Because that's the only way we get back to normal," Kirby told CNBC. "Back to full capacity at restaurants, back to Disneyland open, back to Broadway shows open, and office buildings fully occupied."

However, in Oregon, several large groups are exempt from such vaccination requirements, according to Oregon BOLI:

  • People licensed or certified to provide health care
  • Employees of health care facilities
  • Firefighters
  • Law enforcement officers
  • Corrections, parole and probation officers
  • Many of these fields are where Oregon is seeing higher rates of exposure and risk for COVID-19. Prisons, for example, are sites of some of the state's largest workplace outbreaks.
  • Some unionized workers are also exempt under collective bargaining agreements, including many educators.

Gov. Kate Brown prioritized teachers and school staff ahead of seniors to receive COVID-19 vaccinations with the intent to get students back in school.

"Distance learning is taking a real toll on our kids," Brown told KGW last week. "They need to see the inside of a classroom before the school year gets out."

KGW reached out to several school districts around Oregon to gauge how they might approach challenges around vaccine hesitancy and rules for unvaccinated staff.

Beaverton School District spokesperson Shellie Bailey-Shah responded saying the district "is strongly encouraging all staff to be vaccinated. However, whether or not a staff member is vaccinated will not be considered in their future placement in Hybrid or Comprehensive Distance Learning models."

She added laws prevent the district from asking educators if they have opted to get the vaccine or not.

Under civil rights and disability laws, employers with mandatory COVID-19 vaccine policies must also consider exemption requests from people with sincerely held religious beliefs or disabilities that prevent them from receiving vaccination.

Oregon BOLI said employers are not required to grant the exception if it creates an “undue hardship” on the business or a “direct threat” to the safety of the employee or others. In those cases, an employer is encouraged to work with the employee on appropriate accommodations.

Haddad said this puts employers in a tricky position.

"If you're not requiring vaccines and they are available, are you putting the rest of your employees in harm's way?" he said.

In cases when an employer does not provide accommodations or does not reasonably address safety concerns, Haddad said filing complaints with Oregon OSHA may be necessary. However, he ultimately said during this unpresented vaccine rollout, the legal challenges present a gray area.

"There is a difference between what may appear to be unfair or wrong and what may be unlawful," Haddad said.

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