Oregon Enacts Temporary Rule Requiring Healthcare Worker Vaccinations or COVID-19 Testing

In recent weeks, Oregon has seen a sharp rise in the number of COVID-19 cases and hospitalizations due to the more contagious Delta variant of the coronavirus, which threatens to overwhelm local hospitals. On August 5, 2021, the Oregon Health Authority (OHA) adopted a temporary rule on an emergency basis in response to Governor Kate Brown’s direction to curb and prevent the spread of COVID-19 in healthcare settings. Specifically, the OHA adopted a temporary rule requiring “healthcare personnel and healthcare staff who work in healthcare settings to either be vaccinated against COVID-19 or be tested for COVID-19 on at least a weekly basis.” The temporary rule took effect immediately and will remain in effect through January 31, 2022. “Healthcare providers and healthcare staff” and their employers have until September 30, 2021, to comply with the rule.

Under the temporary rule, “healthcare providers and healthcare staff” include individuals—either paid or unpaid—who work, learn, assist, observe, or volunteer in a “healthcare setting” and who are “providing direct patient or resident care” or are potentially exposed to patients, residents, or infectious materials. This definition includes not only healthcare providers in the traditional sense (e.g., physicians and nurses), but it also includes “unlicensed caregivers” and employees working in clerical, security, billing, and administrative functions, among others, in healthcare settings.

The temporary rule defines “healthcare setting” as “any place where … physical or behavioral health care is delivered.” This includes not only hospitals and medical clinics, but also “nursing facilities, assisted living facilities, adult foster homes, residential facilities, residential behavioral health facilities, pharmacies, hospice, vehicles or temporary sites where health care is delivered (for example, mobile clinics, ambulances), and outpatient facilities, such as dialysis centers, health care provider offices, behavioral health care offices, urgent care centers, [and] counseling offices,” as well as chiropractic or acupuncture clinics. The term “healthcare setting” does not include health care provided in a private home, a public or private school, or any place where the state government controls healthcare activities.

The temporary rule requires Oregon “employer[s] of healthcare providers or healthcare staff, contractors or responsible parties [to] have and follow a policy” for

• requesting and obtaining proof of vaccination from every healthcare provider and healthcare staff person;
• requiring COVID-19 testing “on at least a weekly basis” for healthcare providers and healthcare staff persons who are unvaccinated or whose vaccination status is not known; and
• “[m]aintaining documentation of weekly COVID-19 test results for any healthcare provider or healthcare staff person who is unvaccinated or has an unknown vaccination status.”

These employers have until September 30, 2021, to create and implement such policies. In addition, unvaccinated healthcare providers and healthcare staff will have until September 30, 2021, to get vaccinated or thereafter undergo periodic COVID-19 testing. Any person who violates the rule on or after the compliance deadline may face civil penalties of $500 per day per violation. Oregon employers in the healthcare setting may want to begin implementing this policy and communicate the requirements of the temporary rule to their healthcare providers and healthcare staff to remain compliant with the temporary rule.

Finally, employers subject to this temporary rule may want to note that Oregon law (ORS 659A.306) makes it unlawful to require employees “to pay the cost of any medical examination or the cost of furnishing any health certificate” as a condition of continued employment, unless required by a collective bargaining agreement, state or federal law, or city or county ordinance. The Oregon Bureau of Labor and Industries has promulgated a related, broader rule requiring employers to “pay [for] the cost of any medical examination or evaluation or test, including a drug test, or the production of any health certificate required by the employer.” The OHA’s temporary rule specifically provides that it is not intended to exempt an employer from complying with ORS 659A.306. As such, Oregon employers in a healthcare setting may want to consider carefully whether to impose the costs of complying with the new temporary rule—either regular testing or vaccinations—on healthcare providers and healthcare staff.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.