OHCA The Oregon Caregiver Spring Summer 2021

The Oregon Caregiver SPRING/SUMMER 2021 www.ohca.com 22 F or senior living employers and providers across the United States, it seems that COVID-19 mitigation efforts will reinforce the adage that “no good deed goes unpunished.” Recently in Wisconsin, for example, a federal class action employment lawsuit was filed against an assisted living community, alleging the community violated wage law by screening employees for COVID-19 symptoms immediately before employees clocked in for each of their shifts. Similarly, last September in Texas, a lawsuit was filed against several “nursing homes” (along with various Texas state officials and agencies). The plaintiffs in that lawsuit were described as “individu- als separated by policies implemented by nursing homes at the demand of ” the state, and they alleged that by imple- menting mandated COVID-19 visitation restrictions, the nursing homes had violated the plaintiffs’ “constitutional and statutory rights … resulting in elder abuse” and other wrongful acts. Ore- gon’s senior living employers face a similar quandary when it comes to the rate of COVID-19 immunizations among their staff. On the one hand, a March 2021 Advisory Report (no. 2021-09) of the Oregon Secretary of State, Audits Division, explains that “deaths have dropped, coinciding with vaccinations in long term care;” and the U.S. Equal Employment Opportunity Commission’s (EEOC) recent guidance suggests requiring an employee to get a COVID-19 vaccine as a condition of employment is generally lawful under federal law (but with exceptions such as those discussed later). On the other hand, there is no Oregon state law mandating that senior living employees be vaccinated for COVID-19 as a condition of employment. Oregon senior living employers, in particular, that require staff to receive a COVID-19 immunization may face employee complaints. For example, under Oregon statute, employers are expressly prohibited from requiring employees who are licensed or certified to provide health care, employees of a health care facility, and employees to be vaccinated who are licensed or certified to provide health care, employees of a health care facility, employees of licensed health care providers (which might include all assisted living employees, and certainly the ALF’s registered nurses), and certain other employees, such as law enforce- ment and fire fighters. Similarly, some Oregon employers may be prohibited by contract/union collec- tive bargaining agreement from mandat- ing employee vaccinations. Additionally, because all COVID-19 vaccines are currently approved under only Emer- gency Use Authorization (EUA), there is an open question about whether mandat- ing employees (senior living or other- wise) would violate a provision under EUA law which may prohibit mandating vaccines that are approved solely under an EUA. Nationally, at least one federal lawsuit is pending regarding this EUA issue. OHCA’s Gwen Dayton expands on these considerations and much more related to vaccine mandates in her article on page 15 of this magazine. With the above quagmire in mind, here are suggestions on how Oregon’s senior living employers might seek to incentivize a higher percentage of staff COVID-19 immunization, while also mitigating the employment-related risks. 1. First, educate your employees about the COVID-19 vaccines , including how and why they are safe and effective—and why they are so important to protect residents, co- workers, and families. Use online state (Oregon Heath Author- ity and Department of Human Services) and federal (U.S. Food & Drug Adminis- tration) educational resources as to the safety and efficacy of the EUA of COVID-19 vaccines. These resources Oregon Senior Living Employer Best Practices to Incentivize Staff to Vaccinate Against COVID-19 By Jeff (Brecht) Duncan, J.D., Lane Powell PC SPONSORED CONTENT To help avoid being penalized for specific efforts in the admirable pursuit of high rates of staff COVID-19 immunization, senior living providers should develop a plan and implement it carefully.