On May 10, 2023, the Oregon Health Authority (“OHA”) announced that, effective May 11, it is suspending the statewide rule requiring that health care workers be fully vaccinated against COVID-19 unless they have an approved medical or religious exception. The news coincides with the end of the federal public health emergency on May 11, along with the anticipated end of the federal COVID-19 vaccination mandate for health care facilities certified by the Centers for Medicare and Medicaid Services (“CMS”).
The OHA stated that immediate suspension of the rule is necessary “to align with the end of the federal public health emergency and elimination of other COVID-19-related control measures, and because there is no longer a significant public health need for this rule.”
The OHA also stated:
The rationale for the rule when it was adopted was that COVID-19 was likely to be transmitted in these congregate settings, placing vulnerable persons at risk. [The Oregon mandate] is now being suspended, because immunity from the primary series is known to wane over time, such that 2 booster vaccinations have since been recommended for most persons. Moreover, the virus that causes COVID-19 has mutated such that the original series provides little longer-term protection against infection by currently circulating strains. Finally, at this point most people have been infected by the virus (94% by one estimate), giving survivors a degree of immunity at least equivalent to that provided by the original vaccination series for some period of time.
Here are some of the immediate questions employers may have following the suspension:
- What about the CMS mandate? At present, it remains in effect; however, CMS previously announced that it would end the vaccination requirement soon after the public health emergency expired (which it did today). We continue to monitor this and anticipate more guidance from CMS in the near future.
- What if we have unvaccinated employees on leave? Or if we previously terminated unvaccinated employees? Unvaccinated employees who remain on leave may have reinstatement rights, depending on the circumstances of their leave and the terms of any applicable agreements, including collective bargaining agreements. Employees who did not receive the COVID-19 vaccine and were terminated because there was no accommodation that would have allowed them to work may decide on their own to reapply, or employers may decide to evaluate returning employees to the workplace. It is prudent to navigate these situations with the assistance of your employment counsel.
- Can an employer still require COVID-19 vaccines as a matter of policy? ORS 433.416 arguably prohibits an employer from requiring health care workers to be immunized as a condition of employment, unless immunization is otherwise required by a federal or state law, rule, or regulation. With the OHA and CMS requirements going by the wayside, COVID-19 vaccines will soon enough no longer be required by law. Because the precise scope of ORS 433.416’s requirements is uncertain, again, we recommend conferring with your employment counsel on this topic. Generally, the statute does not apply outside of the health care context, which means that non-health care employers generally may impose COVID vaccine requirements if they wish to do so.
- Can we still require unvaccinated employees to take additional safety precautions when working on-site? Yes. Nothing about the OHA’s rollback of the COVID-19 vaccine requirement changes an employer’s authority to implement COVID-19 safety practices.
Notwithstanding the rescission of the mandate, OHA continues to strongly recommend “vaccination with the most up-to-date formulations” to reduce the likelihood of severe disease. This is consistent with guidance from the CDC, which continues to recommend that individuals receive the updated Pfizer-BioNTech or Moderna COVID-19 vaccine to reduce the risk of serious illness, hospitalization, and death.
Please contact your attorney if you have questions about how this development impacts your business.