Yesterday, Moderna's vaccine received FDA advisory committee approval and the FDA is expected to officially authorize distribution, along with Pfizer/BioNTech's vaccine which was authorized and began distribution last week.
Can Employers Require COVID-19 Vaccination?
Probably. Oregon is an “at-will” state, meaning that an employer can terminate an employee for any reason not contrary to law, such as discriminating against one’s national origin. Employers can specify and change the conditions of employment. Accordingly, an employer could arguably implement a new policy requiring employees to become vaccinated or else they will be terminated.
A legal challenge could involve a claim for religious or disability accommodations.
The at-will rule would not apply to employees with “for cause” termination protections in their employment agreements. Unionized employees likely have contracts with such terms.
Currently, Oregon requires employers to pay for COVID-19 testing if they require it. New legislation may require employers to pay for any required vaccination.
Can Employers Be Liable for Not Requiring Vaccination?
An employer is required to provide a reasonably safe working environment for its employees. Although a stretch at this time, especially since vaccines are not yet available to the general public, one may argue that the failure of an employer to mandate vaccination constitutes an unsafe working environment.
Oregon has already imposed specific requirements for employers regarding COVID-19 and providing a safe working environment, with some requirements going into effect just last week.
Current Workplace Requirements
Oregon has imposed COVID-19 requirements in the workplace such as the following:
• Employers are required to eliminate the need for workers to be within six feet of another person, unless the employer can demonstrate that it is not feasible for certain activities.
• Employers must ensure that all people at the workplace wear a mask, face covering or face shield at no cost to the employee.
• Employers must display certain COVID-19 posters depending on the business sector.
• Employers must conduct an exposure risk assessment with input from employees. Those employers with over ten employees must record their findings, complying with specific requirements.
Please contact us if you have any questions regarding COVID-19 employment law issues. Enjoy this holiday season, but it would be best to avoid Santa’s lap.