Most Oregon employers can require you to get the COVID-19 vaccine, but most probably won't
Most Oregonians are not yet eligible to receive a COVID-19 vaccination and thousands who are continue to struggle with the state’s overloaded sign-up system.
As the vaccine rollout ramps up this spring, though, Oregon workers may wonder whether their bosses could require them to get vaccinated.
In most cases, the answer is yes. But there are exceptions, and very few employers require the vaccinations now or are likely to in the future.
“I think ultimately most employers would be able to require it,” said Henry Drummonds, a Lewis & Clark Law School professor specializing in labor and employment law. “But I think most employers probably wouldn’t want to require it. I think employers could first encourage and educate employees about the safety of the vaccine and the desirability of it in terms of protecting yourself and your coworkers.”
Drummonds said that at-will employment standards allow private businesses to dictate and change the terms of employment at any time and fire employees for any reason, as long as they don’t discriminate on the basis of race, gender, age or any other protected category.
In practice, this means that employers probably could require employees to receive the vaccine to remain employed or return to the office. Both the U.S. Equal Employment Opportunity Commission and the Oregon Bureau of Labor & Industries have released guidance stating that employers can mandate that employees get vaccinated.
There are, of course, exceptions.
Workers can request an exemption for religious reasons or if a disability prevents them from receiving the vaccine. Employers must make reasonable accommodations for those employees if it doesn’t cause undue hardship.
That could mean allowing an employee to work from home or requiring an unvaccinated employee to wear a mask in the workplace, Drummonds said, after vaccinated colleagues are allowed to go unmasked.
It is also possible that union contracts could prevent an employer from requiring vaccinations.
Dan Clay, the president of United Food and Commercial Workers, Local 555, which represents Safeway, Albertsons and Fred Meyer employees, said the union is still determining whether language in its collective bargaining agreements could limit the ability of grocery chains to require vaccines, although he said vaccination requirements were not explicitly discussed in the agreements.
Fred Meyer, Albertsons and Safeway are encouraging their employees to receive the vaccine by offering a $100 incentive to those who are fully vaccinated. The grocers will offer the same incentive to those who opt out of the vaccine for medical or religious reasons but complete an education safety course -- a move that assures the grocery chains don’t run afoul of equal pay laws by offering the incentives.
However, the grocery chains are not requiring that employees receive the vaccine. While the union has criticized the state for not allowing grocery store workers to receive vaccines sooner, Clay said the union would also be concerned if employers were mandating vaccination.
“We strongly believe all essential employees should be getting the vaccine,” Clay said. However, he added, “workers should not have to sacrifice their bodily autonomy to their employer.”
There is one final group of Oregon workers who can’t be required by their employers to receive the vaccine -- and this one might come as a surprise.
Health care workers, among those most at risk of being exposed to COVID-19, can’t be required by employers to receive vaccines under a 1989 Oregon law. The law defines health care workers broadly to include health care providers and those who work in health care facilities, plus firefighters and law enforcement officers.
Under the law, health care workers could only be required to receive the vaccine if it is mandated under state or federal law. There is no such law, nor does one appear likely.
Providence Health & Services and Oregon Health & Science University, two of the Portland area’s largest employers, are encouraging, but not requiring that health providers be vaccinated. Those who are vaccinated must still wear masks and take other protective measures.
Voluntary compliance has been high. Erik Robinson, a spokesperson for OHSU, said roughly 80% of its workforce has been vaccinated so far and that the research university is helping to schedule employees for vaccinations and providing consultations for those identified as at risk for allergic reactions.
Few employers have announced plans to mandate vaccinations, even if they legally are allowed to do so.
Just 6.5% of human resources, legal and executive employers nationwide plan to require all their workers be vaccinated, according to a February survey by Littler, an employment law specialist. Of the 1,800 survey respondents, another 43% said they are still determining their policies.
A separate survey of small business owners conducted by the U.S. Census Bureau last month found that only 2% currently require that employees show proof of vaccination before coming to work.
“In my experience, employers don’t want to get involved in their workers’ medical histories, they don’t want to ask people about their disabilities or their religious exemptions,” said Elizabeth Tippett, a University of Oregon law professor specializing in employment practices. “So, I think employers will try less punitive ways to encourage people to get vaccinated before they resort to a full-on requirement, although it might vary by industry.”
On Monday, the Centers for Disease Control and Prevention released encouraging guidance for those that have been fully vaccinated, announcing that vaccinated individuals could gather indoors in small groups with unvaccinated people without having to wear masks or maintain physical distance. The guidance also said that vaccinated individuals will not need to quarantine if they are exposed to the virus, as long as they don’t develop symptoms.
The new guidance underscores the effectiveness of the COVID-19 vaccines. If fully vaccinated workers are unlikely to contract the virus, regardless of whether their colleagues are vaccinated, it may reduce the incentive for employers to mandate vaccinations for everyone.
Intel, Oregon’s largest corporate employer, is strongly recommending but not requiring that workers receive vaccinations when they become eligible, according to a company spokesperson. Intel is offering employees four hours of paid time off for their vaccination appointments.
Amazon will pay employees $80 -- $40 per vaccine dose -- if they have to go offsite to get vaccinated, according to a company spokesperson. It won’t require vaccines, but Amazon says it hopes to set up vaccination clinics at its warehouses to make it easy for workers who want the shots.
Though laws generally allow employers to require vaccines, the federal emergency-use authorization for the COVID-19 vaccines creates some legal uncertainty in this case. People receiving vaccines approved that way are supposed to be informed that they can refuse the shot.
Legal experts say it’s not entirely clear whether that would prevent an employer from mandating that employees receive the vaccine.
“It’s theoretical at this point,” Tippett said.