OHCA The Oregon Caregiver Fall Winter 2021

The Oregon Caregiver FALL/WINTER 2021 www.ohca.com 16 LEGAL & REGULATORY Vaccine Mandate: Legal Implications and Workforce By Gwen Dayton, JD, Oregon Health Care Association Disclaimer: This article provides general guidance only and is not formal legal advice. For this formal legal advice, please consult a private attorney. W hile OHCA supports COVID-19 vaccination requirements for health care workers as supportive of resident safety, implementation has not been easy. Beyond the workforce shortage challenge, which is significant, the mandate rules present compliance questions that long term care facilities must work through. This article will discuss the thorniest of these issues and pose possible solutions. For an additional resource on COVID-19 employment-related issues, see the memorandum Lane Powell attorneys prepared for OHCA on our website, www.ohca.com. What Does Oregon’s Vaccine Mandate Require? (Temporary rule OAR 333- 019-1010) After October 18, a healthcare employer covered by the vaccine mandate require- ment may not allow a person with the potential for direct or indirect exposure to residents or infectious material to work, assist, observe, or volunteer in the healthcare setting unless they are fully vaccinated against COVID-19 or have provided documentation of a medical or religious exception. “Fully vaccinated” means the person has received both COVID-19 vaccine doses, or one dose of a single-dose vaccine, and gone through a 14-day waiting period. As a practical matter, this means all employees and contracted staff as well as volunteers who enter an Oregon long term care community and maybe even outdoor spaces must provide proof of full vaccination against COVID-19 or documentation of an exception. The law does not include employees who work exclusively from home or in a work site that is separate from the facility. Notably, it also does not include visitors such as family members. Long term care provid- ers should continue to screen visitors and require protective measures such as masking, but cannot require vaccination as a condition of entry unless the resident requests this limitation. “Healthcare setting” expressly includes nursing facilities, residential care facilities, and assisted living facilities. It does not include care provided in unlicensed settings, such as a private home or independent living setting. However, an in-home caregiver who enters a covered healthcare setting, such as an assisted living facility to provide care to a resident, must show proof of vaccination or documentation of an exception. A facility should request that the in-home care agency confirm vaccination status or exception prior to the caregiver’s entry into the facility. Exception Process Oregon’s vaccine mandate allows for two exceptions: a medical exception and a religious exception. A medical exception means that an individual has a physical or mental impairment that prevents the individual from receiving a COVID-19 vaccination and the religious exception means an individual has a sincerely held religious belief that prevents the individ- ual from receiving a COVID-19 vaccina- tion. An employee or other person who seeks one of these exceptions must submit a form to a facility documenting the need for the exception. The Oregon Health Authority (OHA) has published forms for this purpose or a facility may use its own forms if they include at least the same information as the state forms. The medical exception form requires a provider attestation that the staff member has a medical condition that prevents the vaccine. The religious exception form, however, only requires an explanation from the staff member of why the sincerely held religious belief prevents acceptance of the vaccine. Facilities may receive religious exception forms that either include inaccurate information about the vaccine, or an explanation of the religious belief that, seemingly, does not adequately explain the belief and its relationship to the vaccine. Oregon’s law does not require a facility or other healthcare setting covered by the law to investigate the validity of an exception form. Rather, the law merely requires a “documented medical or religious exception.” OAR 333-019-1010(3)(b) states that if an Facilities across Oregon continue to navigate the balance between the need for sufficient qualified staff to care for vulnerable residents and the threat an unvaccinated employee may pose to these residents.