As Oregon suspends Covid-19 vaccination rule, here's what health care employers need to know

As Oregon suspends Covid-19 vaccination rule, here's what health care employers need to know

Last week, the Oregon Health Authority suspended Covid-19 vaccine requirements for health care workers and staff nearly two years after this controversial rule was implemented.

The Centers for Medicare & Medicaid Services (CMS) is also expected to roll back the mandate in the near future, even though the federal mandate still remains. This rule is applicable to all hospitals and other healthcare providers who are Medicare and Medicaid certified.

'Any employer that falls under the purview and scope of this law must comply, but it's only a question of time before that is rescinded, too,' said Brenda Baumgart. She's a partner with Stoel Rives, a Portland-based firm, and the chair of its Labor & Employment Group.

Baumgart offers some answers to employers who might be wondering what these new rules mean.

Background to the Rule Changes

In August 2021 a temporary rule will be in effect, followed by the permanent rule of Jan. 31, 2020, which requires Oregon health care workers to complete a primary Covid series, or get a religious or medical exception.

About 85%, or 131 374 caregivers, of the health care workforce in the state got immunized. However, thousands of others refused and either sought exemptions, or quit their job.

Some workers were fired or placed on administrative leave, and dozens of people have filed lawsuits in U.S. District Court Oregon over this policy. In general, workers claim that hospitals either denied or did not accommodate their requests for religious exemptions. The workers are suing for hundreds of thousands of dollars in damages and back pay.

Why Oregon is adapting

The federal government lifted the Covid emergency declaration on May 11th, hence the change of rule in Oregon. OHA's order states that the original vaccine series provides only short-term protection from the current strains of the virus, and 94% or more of the population have been infected.

Baumgart stated that health care providers had been discussing this issue for some time. Even before the rollback, they considered whether or not to relax their hiring practices and policies while still remaining compliant with all applicable mandates. The recission and anticipated rollback of the federal vaccine mandate, as well as the OHA's vaccination mandate, have all contributed to these discussions.

Baumgart stated that unvaccinated workers who are on leave could have reinstatement rights depending on their circumstances, and any agreements applicable, including collective bargaining. Employees terminated from their job may decide to apply for a new position, or hospitals might consider returning them to work, especially with the current staffing shortages in health care.

Baumgart stated that some employers did not terminate employment. Others put non-vaccinated workers who could not be accommodated in a leave of absent. Some are evaluating whether or not to give notice to employees that they can return. Those who have experienced a formal separation can decide whether to reach out or not.

Oregon state law prohibits employers from requiring immunizations as a condition for employment, unless another federal or state law, rule, or regulation requires it.

Baumgart advises employers to seek advice from their employment counsel as the scope is "uncertain"