OHCA The Oregon Caregiver Fall Winter 2021

www.ohca.com FALL/WINTER 2021 The Oregon Caregiver 17 LEGAL & REGULATORY exception form is so vague or inadequate that a facility is not sure the form qualifies as documentation of an excep- tion, it may engage in dialogue with the employee to allow for a fully completed form. Facilities should be careful, however, not to inquire as to matters protected by the Americans with Disabil- ities Act (ADA) or Title VII of the Civil Rights Act of 1984 (Civil Rights Act). This is a good example of when private legal counsel should be consulted. Oregon law also requires employers who grant an exception to the vaccination requirement to take reasonable steps to ensure that unvaccinated healthcare providers and healthcare staff are protected from contracting and spread- ing COVID-19. This is another way of expressing the “reasonable accommoda- tion” requirement included in the ADA and the Civil Rights Act. Facilities should determine what accommodation is available for staff who have submitted an exception that does not impose an undue hardship to the facility and ensures as much as possible the unvacci- nated staff will not infect residents and other staff with the virus. Common accommodations are enhanced masking, frequent testing, and assignment to less vulnerable residents. If no accommoda- tion is available or the employee will not accept the accommodation or be compli- ant with it, Oregon law does not allow them to work. Enforcement OHA has authority to fine providers $500 per violation per day for violation of the vaccine mandate. The Oregon Department of Human Services (ODHS) has adopted the OHA mandate rule so maintains parallel enforcement authority, which may include referral to OHA for imposition of the $500 fine and enforce- ment through the ODHS survey/com- plaint investigation process. Of particular enforcement concern is the hiring of new employees who are not yet vaccinated. Oregon law requires them to be fully vaccinated, including both doses and the 14-day incubation period, before having direct or indirect contact with residents. This may not always be possible, and providers face such significant staff shortages that they may feel the need to hire an unvaccinated employee in order to meet required staffing levels. OHCA has expressed support for allowing a person who has received one dose to be hired if they become fully vaccinated within a required time period as a partially vaccinated caregiver may be safer than an unvaccinated caregiver acting under a reasonable accommodation but, to date, no such express allowance has been provided. Oregon Department of Human Services (ODHS) has adopted administrative rules that insert the vaccine mandate into its infection control requirements. As such, violation of the mandate may bring ODHS enforcement as well. ODHS will include review of vaccine documentation as part of its regularly scheduled surveys as well as in response to a complaint involving the vaccine mandate. Similar to OHA, ODHS has indicated it intends to treat violations as a technical assistance matter if the provider has taken reasonable steps to comply with the law. ODHS likely will refer flagrant violations to OHA for enforcement action by that agency. Federal Mandates Both the Centers for Medicare and Medicaid Services (CMS) and federal OSHA have adopted vaccine mandates. Nursing facilities are included in the CMS mandate, which generally parallels Oregon’s mandate law, and residential care/assisted living facilities are not included in either of these new mandates. In-home care agencies with 100 or more employees are likely are covered by the federal OSHA vaccine mandate. As the federal rules are formalized, OHCA will issue further implementation guidance on these mandates, including whether the Oregon exceptions forms and process will suffice to comply with the CMS law. Important points to remember at this juncture are the December 4 deadline for nursing facilities to have policies and procedures in place, implementing the CMS mandate and that the federal OSHA mandate allows a testing option, so in-home care agencies subject to this mandate should explore whether unvac- cinated staff will choose this option and how to implement it. Conclusion The vaccine mandate has changed our employment world at a time when we need to recruit and retain as many well-trained employees as possible. While OHCA hopes the mandate encour- ages higher levels of vaccination in both healthcare settings and generally, the reality is not all employees and others serving in long term care facilities will become vaccinated despite the law and the extensive efforts facilities have engaged in to encourage this vaccination. Facilities across Oregon continue to navi- gate 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. OHCA is available to help with this journey. For more infor- mation on the vaccine mandate and how Oregon’s law applies, contact Gwen Dayton, JD, OHCA General Counsel. If you have questions about the issues discussed in this article, please contact Gwen at gdayton@ohca.com.