OHCA The Oregon Caregiver Spring Summer 2021

www.ohca.com SPRING/SUMMER 2021 The Oregon Caregiver 15 Staff Vaccinations: Managing the Tricky Issues By Gwen Dayton, J.D., Oregon Health Care Association While we hope the information in this guidance is helpful, it does not constitute formal legal advice, nor does it establish an attorney/client relationship between the reader and OHCA legal counsel. OHCA recommends that facilities seek formal legal advice from private counsel with expertise in employment law before proceeding with an employment action. W e are seeing the light at the end of the tunnel, and that light is the COVID-19 vaccine. Long term care facilities have been given the opportunity to vaccinate both residents and staff through a pharmacy-driven program. As we move forward, however, facilities are facing new vaccine issues. For example, while most residents have accepted the vaccine, staff acceptance rates have been more variable. The concept of a vaccine mandate is much discussed in the national literature and may seem like a good option; this article will discuss whether a mandate is a workable solution for long term care communities and in-home care. Then, as facilities hire new staff, can they require the new employee to be vaccinated as a condition of hire? What about if residents or family ask if a caregiver is vaccinated; can you disclose that? Where to Begin Before considering the issues discussed here, where are you in your vaccination progress? Have you had good uptake of the vaccine? If so, you can consider skipping to the end of this article for information on disclosure of employee vaccine information. If not, consider why your uptake may be low. Have you engaged in a concerted education cam- paign? Have you appointed a community champion to promote the vaccine? These are both important steps to take before proceeding to more formal action. Incentives If the community vaccine acceptance is less than you would like it to be and other efforts to encourage vaccination have not been successful, the community may consider employee incentives to encourage stronger participation. Be careful, however, when setting up a vaccine incentive program not to run afoul of laws that apply or discriminate against certain employees. The article by Jeff Duncan on page 22 of this magazine offers suggestions for crafting an appro- priate incentive program. Mandate It is increasingly common to see refer- ences in the media and elsewhere to long term care facilities mandating the vaccine for staff. Oregon law, however, prohibits a mandate in many circum- stances. • ORS 433.416 says, “A worker shall not be required as a condition of work to be immunized under this section, unless such immunization is otherwise required by federal or state law, rule or regulation.” • ORS 433.407 says that “worker” means a person who is licensed or certified to provide health care under ORS chapter 677 (medicine), 678 (nurses, CNAs, licensed administrators), 679 (dentists), 680 (dental hygienists), 684 (chiropractors), 685 (naturopaths), or ORS 682.216 (EMS), an employee of a health care facility, of a licensed health care provider or of a clinical laboratory. What does this mean for nursing facilities? Because a nursing facility is a health care facility as defined, it cannot mandate the vaccine for employees as a condition of work. Also, most staff in a nursing facility are licensed or certified staff; the statute also specifically prohibits a mandate for these workers. What does this mean for assisted living and residential care facilities? Oregon law precludes mandating the vaccine for licensed or certified staff, including administrators, but is ambigu- ous whether other unlicensed/certified assisted living/residential care facility staff may be mandated. It is not clear if an assisted living or residential care facility is a “licensed health care pro- vider” under the Oregon law above and thus precluded from requiring the vaccine for any employees. The cautious approach would be not to mandate the vaccine in this setting. What does this mean for in-home care agencies? Oregon law appears to allow mandating the vaccine for unlicensed or uncertified We are seeing the light at the end of the tunnel, and that light is the COVID-19 vaccine. As we move forward, however, facilities are facing new vaccine issues. LEGAL & REGULATORY CONTINUES »