Effective September 30, 2021, a new rule issued by the Oregon Health Authority (OHA) will require either 1) proof of vaccination or 2) weekly COVID-19 testing for all "Healthcare Providers" and "Healthcare Staff" working in any "Healthcare Setting." Employers, Healthcare Providers, and even Healthcare Staff themselves who violate the rule are subject to a fine of $500 per day, per violation—the maximum penalty OHA is authorized to impose. The rule has led to numerous questions. Here's what we know now.

What Is a Healthcare Setting?

Under the rule, Healthcare Setting is broadly defined to mean "any place where health care is delivered," with limited carve outs identified in the rule. The OHA specifically includes:

  • Hospitals, ambulatory surgical centers, birthing centers, special inpatient care facilities, and pharmacies;
  • Long-term acute care facilities, inpatient rehabilitation facilities, inpatient hospice facilities, nursing facilities, assisted living facilities, adult foster homes, residential facilities, residential behavioral health facilities, and hospices;
  • Vehicles or temporary sites where healthcare is delivered (for example, mobile clinics, ambulances); and
  • Outpatient facilities, such as dialysis centers, healthcare provider offices, behavioral healthcare offices, urgent care centers, counseling offices, offices that provide complementary and alternative medicine such as acupuncture, homeopathy, naturopathy, chiropractic and osteopathic medicine, and other specialty centers.

Who Are Healthcare Providers and Healthcare Staff?

OHA defines Healthcare Providers and Healthcare Staff broadly as well. It includes any person—paid or unpaid—who is working, learning, studying, assisting, observing or volunteering in a Healthcare Setting that provides direct patient or residential care.

It also includes any person engaged in those activities in a Healthcare Setting who has the potential for direct or indirect exposure to patients, residents, or infectious materials. The OHA specifically includes licensed and unlicensed caregivers, clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing, student, and volunteer personnel.

What About Employees Working From Home 100 Percent of the Time?

Employees whose homes are not licensed to provide healthcare services, e.g., employees who are working remotely from their own home office, are not considered to be working in a Healthcare Setting for the purposes of this rule. The requirements of this rule only apply to any week in which the remote employee enters a Healthcare Setting.

Can Healthcare Employers Make the Choice to Require Employees Be Vaccinated, Rather Than Give Them the Choice of Vaccination or Weekly Testing?

Maybe. This topic has been thoroughly covered in the media, with many news stories reporting there is a ban on mandatory vaccines for healthcare workers, citing ORS 433.416, a 1989 statute. The statute in question requires employers provide preventative vaccines to employees who are exposed to infectious disease during the course of their job duties.

The statute specifically requires that employers pay for the vaccine but states that employers cannot mandate it under this statute unless immunization is otherwise required by law, rule, or regulation. While this statute has been cited for the proposition that vaccination mandates are always prohibited in a Healthcare Setting, that interpretation has not been verified in any published court cases.

Another plausible reading of this statute is that Healthcare Providers cannot mandate vaccines to protect an employee from the risks of their job. The desire to protect impacted healthcare workers from hazards of the job was part of the rationale for ORS 433.416. The statute arose in response, at least in part, to the AIDS epidemic while national HIV vaccine trials were underway. In other words, healthcare workers were being exposed to an infectious disease at work and the statute was designed to offer—but not force—protections from those diseases.

The situation with COVD-19 is different. Here the desire to mandate does not come because the employee is exposed at work, but rather because of pervasive community spread and the fear that the employee may bring COVID-19 into the Healthcare Setting. As OHA noted in the rule itself, two of the motivating factors behind vaccines are to "protect patients" and "help control COVID-19."

Put simply, employees who choose not to vaccinate are putting their vulnerable patients at risk, patients who have no choice but to interact with Healthcare Providers and Healthcare Staff. The statute in question may not prevent mandatory vaccines for these reasons. But to be very clear, this interpretation is untested in any court as far as we know, and, therefore, any healthcare employer who is considering mandatory vaccines is strongly encouraged to discuss this approach with their legal counsel before proceeding.

Who Pays for the Vaccine?

The vaccine is free in the United States. The time it takes to get the vaccine may be compensated or uncompensated.

The Bureau of Labor and Industries (BOLI) takes the position that the time is compensable if employees get the vaccine during their normal work hours, but the time need not be compensated if employees get a required vaccine outside of normal work hours.

Who Pays for the Testing?

Under Oregon law, an employer must pay for any required medical examination or health certification. Employers are allowed to recoup the cost from any health and welfare fringe benefit money contributed to entirely by the employer. Examples of such benefits are employer-funded HSAs, employer-funded FSAs, or Wellness Accounts that employees can use for a variety of health and wellness related expenses, such as gym memberships.

If a healthcare employer chooses to take the position that a COVID-19 vaccination is required and decides to offer weekly testing as an optional alternative to that requirement, they may argue that the test is a choice and not required and, therefore, need not be paid for. As this OHA rule is new, we do not yet know what position BOLI or the courts would take with respect to an employer's obligation to pay when an employee could but simply chooses not to get vaccinated.

Therefore, as with any decision regarding proper pay to employees, we recommend consulting with counsel first to evaluate the specific situation.

Can I Require an Employee Use Their Wellness Account to Pay for Testing?

Yes, see response to "Who pays for testing?"

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.