OHCA The Oregon Caregiver Spring Summer 2021

The Oregon Caregiver SPRING/SUMMER 2021 www.ohca.com 16 caregivers and administrative staff. But, before taking this step agencies must consider further legal and practical considerations, such as application of federal law and workplace culture, and it is highly recommended that the agency consults an employment lawyer to work through how a mandate might be appropriately implemented. How does federal law impact vaccine mandates? If a mandate is available under Oregon law, federal law imposes significant obligations that must be considered before proceeding. Guidance: In December 2020, the U.S. EEOC, issued very helpful guidance addressing whether the COVID-19 vaccine may be mandated for employees and addressing other COVID-19 questions. Americans with Disabilities Act (ADA): An entity considering mandating the vaccine should consult with an employ- ment lawyer with expertise in the ADA before proceeding as the law is multi- faceted and subject to evolving interpre- tation. The ADA generally prohibits employers from discriminating against applicants or employees because of a disability. The ADA, however, allows employers to exclude individuals from the workplace if they pose a “direct threat” to the health or safety of themselves or other employ- ees. The ADA has designated COVID-19 a “direct threat.” But, while designating COVID-19 as a direct threat, the ADA does not expressly allow a vaccine mandate program on that basis. Before excluding an unvaccinated employee as a direct threat, an employer must engage in an individualized assessment that this particular employee poses a threat of harm. See, 29 CFR 1630.2(r) for the factors to consider. Even if a direct threat is found, the employer cannot necessarily exclude the employee from the workplace or terminate them. The employer must determine if there is a reasonable accommodation to allow the employee to continue work while removing or reducing the direct threat, such as working remotely, and also consider if the employee has qualified leave available. The EEOC has made it clear that reasonable accommodation must be provided to employees who are unwilling or unable to be vaccinated because of a disability. An employer that administers a vaccine program must be careful about the questions asked of employees to ensure prescreening questions are necessary to administer the vaccine, job-related and consistent with business necessity, and do not elicit information about the nature of a disability. All questions, and answers, must be kept confidential. This requirement also applies when the vaccine is administered by a third party that the employer contracts with to administer the vaccine. Title VII, Civil Rights Act of 1964: Similar to the ADA, Title VII requires reasonable accommodation to an employee who asserts a sincerely held religious belief that prevents the employee from getting vaccinated. Even if no reasonable accommodation is available, employers need to determine if any other federal, state, or local rights may apply before terminating the employee. Other Considerations: Before going forward with a mandated vaccine, consider that vaccine mandates may negatively impact employee morale and exacerbate an already very difficult staff shortage. Vaccination as a Condition of Hire It would seem Oregon’s prohibition on mandating the vaccine applies equally to requiring a prospective employee to be vaccinated as a condition of hire. Oregon’s law prohibits requiring a vaccine “as a condition of work” (ORS 433.416). It is a reasonable interpretation that a condition of work would include being allowed to work in a facility. It is acceptable to ask a prospective employee if they are vaccinated and, if they are not, why they are not so long as you do not inquire as to the nature of any identified disability or religious belief. You may offer to facilitate access to the vaccination if the prospective employee is willing. If they are not willing, you may require that the employee take protective steps such as heightened use of personal protective equipment or ensure the employee only cares for residents who are vaccinated and not otherwise vulnerable to infection. Disclosure of Employee Vaccine Information The question of whether you can disclose an employee’s vaccination status, even when asked by residents and families, is largely untested, but it seems a facility or in-home care agency may disclose whether an employee has been vaccinated for COVID-19 if it chooses to. There may be restrictions on this disclosure if the facility or agency directly administered the vaccine, and the facility or agency should consider its overall employee policies and culture when determining whether and how to disclose vaccine information. It is acceptable to ask a prospective employee if they are vaccinated and, if they are not, why they are not so long as you do not inquire as to the nature of any identified disability or religious belief. LEGAL & REGULATORY » LEGAL & REGULATORY, CONT.