OHCA The Oregon Caregiver Spring Summer 2021

www.ohca.com SPRING/SUMMER 2021 The Oregon Caregiver 23 SPONSORED CONTENT could also assist senior living employers in explaining to staff how a high percent- age COVID-19 staff immunization rate in your community is, in effect, a badge of honor. Toward that end, also consider placing in your community, the Center for Disease Control and Prevention’s (CDC) “Essential Worker” posters designed to encourage employees to get COVID-19 vaccinated. 2. Second, be thoughtful and deliberate in your staff communications to help avoid violating employee protection statutes. For example, according to the EEOC’s recent guidance, simply asking a senior living employee a yes/no question as to whether the employee has received the COVID-19 vaccine is generally permitted. However, in COVID-19 immunization- related discussions with employees, senior living employers should be careful about digging deeper. For example, if an employee states they have not received the COVID-19 vaccine and then the senior living employer responds, “How come?” that might be considered a medical question under the ADA. Employers also must keep medical information confidential. Additionally, triggering the ADA might also create risk of a discrimination claim, depend- ing on various factors. For example, the ADA can be triggered by asking ques- tions that are likely to elicit information about a disability, such as the pre-screening questions posed before receiving a vaccine. These sorts of risks can be mitigated if, for example, a third party (not contracted by the employer) performs pre-immunization screenings of staff. 3. Third, if you plan to offer and provide some sort of COVID-19 immunization “reward” or incentive to encourage your senior living employees to voluntarily immunize against COVID-19, you may lower the risk of an employment claim by offering and providing the same modest “reward” to every single employee (even those who, for whatever reason, do not immunize) if and when your senior living community reaches some immunization goal (or goals), such as a 90 percent staff immunization rate . But any such “reward”-based plans carry the risk of violating various laws. Accordingly, before implementing any such plan, you should confer with your legal counsel. A high COVID-19 vaccination rate among senior living staff is important for many reasons. To help avoid being penalized for specific efforts in the admirable pursuit of high rates of staff COVID-19 immuniza- tion, senior living providers should develop a plan and implement it care- fully—just like it does with every other COVID-19 consideration. Jeff (Brecht) Duncan is a shareholder with Lane Powell PC, an OHCA business partner. This article has been sponsored and provided by Lane Powell.