FAQs Regarding Employer-mandated COVID-19 Vaccination in Oregon and Washington

As vaccines arrive at hospitals around the U.S. this week, the first hopeful signs that the pandemic may end next year begin to emerge.  Many Oregon and Washington businesses are asking whether they can lawfully require their workforce to obtain a COVID-19 vaccination when it becomes available to the public. In the “at will” employment setting, the answer is, generally, “yes,” so long as vaccination is job-related and consistent with business necessity. Because the coronavirus is spreading uncontrolled and is easily transmitted in the workplace, many businesses can meet this standard. However, any compulsory vaccination policy must also permit exemptions, and alternative accommodations, based on certain medical conditions and bona fide religious beliefs. This article addresses some of the key legal considerations for Oregon and Washington employers as they decide whether to adopt a compulsory COVID-19 vaccination policy.

1. When Must Employers Provide Accommodation Based on a Medical Condition?

Under the Americans with Disabilities Act (“ADA”), and its Oregon and Washington counterparts, employers are required to make reasonable accommodations for the known, disability-related limitations of its employees and applicants unless the accommodation would amount to an “undue hardship” (one that causes significant difficulty or expense). In Oregon, all employers with at least six employees are covered by this requirement.  In Washington, the law covers businesses with at least eight employees.

The ADA defines an actual disability as a physical or mental impairment that substantially limits one or more major life activities. Thus, an employee requesting an exemption from a compulsory vaccination policy must demonstrate that the employer’s vaccine requirement conflicts with an existing medical impairment. A request for accommodation may not be based on speculative or theoretical concerns.

According to the Centers for Disease Control (“CDC”), at this time, the only restriction for the one approved COVID-19 vaccine (Pfizer-BioNTech) is for individuals known to have a history of severe allergic reactions (anaphylaxis) to any component of the vaccine. However, this may change with additional data from the vaccination roll-out. Additionally, new vaccines that become available and are approved by the FDA may have other contraindications. The CDC’s guidance also suggests that some groups (pregnant or lactating employees and those who are severely immunocompromised) may wish to defer the vaccine, after consulting with their physician, until more information is available about the risks to those groups.

Employers should require a health care provider’s statement for any requested exemption from a compulsory COVID-19 vaccination policy. Employers must be careful to ensure that any medical information received from employees be treated as confidential. As with any accommodation request under the ADA, a careful, individualized, and fact-based assessment must be done in order to determine whether a reasonable accommodation presents an undue hardship.

2. When Must Employers Provide Accommodation Based on Bona Fide Religious Belief?

Any business with at least one employee in Oregon or Washington is required to accommodate the bona fide religious beliefs of their employees unless doing so would cause an “undue hardship,” which is generally defined as anything that imposes more than a “de minimis” cost or burden on the employer – a standard that is lower than the one required to show “undue hardship” for disability accommodation.

Generally, requests for religious accommodation must be “sincerely based on a religious belief and not some other motivation.” The term “religion” is construed broadly, and an employee’s religion may be one that is traditionally recognized or not. There are very few recognized religions that have theological objections to vaccines.

In the case of a compulsory vaccine policy, an employee seeking an exemption would need to demonstrate that the COVID-19 vaccination conflicts with their sincerely held religious belief. Anti-vaccination beliefs on their own would not be considered a “sincerely held religious belief” because the belief is secular, science-based, and generally isolated to a single issue. Additionally, the employer may refuse the accommodation request if it imposes more than a de minimis cost or burden on its operations. As with any other request for religious accommodation, the employer should conduct a careful review in order to determine whether a reasonable accommodation presents an undue hardship to the business.

3. What are Some Possible Accommodations for Either a Religious Objection or Disability?

For either disability or religious accommodations, employers have two obvious options. First, requiring the employee to wear a face covering, and to maintain social distancing while in the workplace. Second, if feasible and not cost-prohibitive, an employer may allow the employee to work from home.

An employer may reject accommodation requests where the employer can demonstrate that to do so would constitute undue hardship. As mentioned above, for disability accommodation, the employer must show that the accommodation would cause significant expense or burden. In the case of religious accommodation, the employer need only demonstrate that the accommodation would result in a modest cost or burden on the business.

Employers should consider whether the accommodation of wearing a face covering and social distancing would be effective at preventing the transmission of COVID-19. Some employer may be able to demonstrate that any accommodation that provides less than full protection from exposure to COVID-19 in the workplace poses too great a threat serious harm or death to be deemed “reasonable.” Because of the declaration that COVID-19 is a pandemic, the virus is recognized to pose substantial risk of serious harm to all in the workplace and all served by it. Therefore, an employer may be able to successfully argue that lesser safeguards create significant costs in terms of the safety of its employees and patrons.

4. Are there Other Considerations?

• Workers’ Compensation Claims. An employee who has a negative reaction to a mandatory vaccine may file for workers’ compensation benefits as the vaccination may be considered to arise out of the employee’s course of employment. In filing, however, the employee must make a showing of a specific injury and that is generally difficult to do so in the context of vaccines. Nonetheless, employers should review their insurance policies before implementing vaccination programs to ensure that that adverse reactions will be covered and to find out whether the vaccines need be administered on site or during work hours to be covered.
• OSHA General Duty Clause. Employers may incur liability for failing to mandate or encourage vaccination. An employer can be deemed negligent where they have a duty to prevent foreseeable and unreasonable risk of harm to their employees and the employer breaches that duty. OSHA requires employers to ensure that the workplace is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees.” Under this general duty standard, the likely transmission of COVID-19 might be considered a deadly or serious hazard against which an employers has a duty to protect against. Therefore, employers may have a duty to at least encourage vaccination and could be held liable for failure to do so—particularly where transmission among employees and patrons is likely.
• Oregon Employees in Healthcare Settings. Under Oregon law, certain healthcare employers may not mandate that employees receive vaccinations unless otherwise required by state or federal law, rule, or regulation.
• Unionized workplaces. For employers with unionized employees, vaccination requirements may be a mandatory subject of bargaining and so employers should consult with union representatives before implementing a mandatory vaccine policy.

Employers must carefully consider whether a mandatory vaccination policy is right for their company. Alternatives should also be considered, such as a voluntary vaccination policy with incentives for compliance. This is ultimately an individualized assessment that likely will differ among workplaces. Your Dunn Carney Employment Team would be happy to work with you to find a path that best suits your businesses’ particular situation.

For more information please contact a member of Dunn Carney’s Employment Law Team.

Allyson S. Krueger, Partner
Phone: 503-417-5461
Email: akrueger@dunncarney.com

George “Jack” Cooper, Of Counsel
Phone: 503-306-5323
Email: jcooper@dunncarney.com

Lauren J. Russell, Associate
Phone: 503-306-5346
Email: lrussell@dunncarney.com

©2020 Dunn Carney LLP.  This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Dunn Carney LLP and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.