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The Highest-Risk Professions in Oregon Are Barred From Instituting Vaccine Requirements

No Oregon hospital can require that its doctors, nurses or other licensed health staff receive vaccinations before entering the building.

Last week, the Oregon Health Authority released data showing that just 62% of staff at nursing homes and other long-term health care facilities were vaccinated against COVID-19.

That number is alarming because nursing homes and other care facilities for the elderly had the most significant outbreaks in the country. It’s also notable because employers have no authority to require licensed health care workers at any job to get the shots.

In most industries, employers can mandate that their workers receive COVID-19 vaccines, at least within certain parameters, like making the shots a condition of returning to the office. But in health care—where the stakes are highest—employers cannot.

That’s right: No Oregon hospital can require that its doctors, nurses or other licensed health staff receive vaccinations before entering the building.

“Vaccines are safe and effective and are the best way to protect hospital patients and the hospital workforce from COVID-19, the flu, and other infectious diseases,” says Becky Hultberg, president and CEO of the Oregon Association of Hospitals and Health Systems. “Yet health care providers are the only organizations prohibited by Oregon law from considering vaccine requirements for their employees.”

That’s thanks to a law passed in 1989. It added to a previous requirement that health care employers must provide free vaccinations to their workers. The additional clause, however, said bosses couldn’t mandate shots. “A worker shall not be required as a condition of work to be immunized under this section,” the law says, “unless such immunization is otherwise required by federal or state law, rule or regulation.”

The law defined health care workers to include “employees of a health care facility,” as well as “firefighters, law enforcement officers, corrections officers,” as the Oregon Bureau of Labor and Industries noted in guidance issued earlier this year. Exceptions to vaccines also apply in cases where employees have a union contract that prohibits a vaccine mandate or where employees have a religious reason or a disability that prevents them from getting vaccinated.

The long-standing existence of such a prohibition has created an odd dynamic in Oregon labor relations: In the jobs that care most intimately for the state’s most vulnerable people, employers have the least power to require safeguards.

Industry groups representing hospitals and group homes say the prohibition is outmoded and raises the risk for patients as COVID-19 variants arrive in Oregon.

“For the protection of health care workers, patients and their families, we should reconsider this needlessly restrictive policy,” says Hultberg. “This discussion is long overdue and is more important than ever as we move into the next phase of our response to the COVID-19 pandemic.”

The Oregon Resource Association, a network of organizations that provide housing or services to intellectually and developmentally disabled adults, says employers would like that option—even if it comes at the risk of alienating vaccine-skeptical workers.

“Very likely, some staff would choose not to continue if they had to get the vaccine,” says Lois Gibson, executive director of the Oregon Resource Association. “But I believe [employers] would like to have the option.”

The key concern for the industry, she says, is staffing. The long-term care industry is perpetually short-staffed because wages are largely set by state reimbursement rates and are low—lower than unemployment benefits in some cases. Women, who make up most of that workforce, have had to stay home in greater numbers for the past year as schools remained closed.

Such tight staffing means outbreaks, when they occur, result in staffing crises. “So, suddenly, you have 15 people that can’t work when you already didn’t have enough people to work,” Gibson says.

For the same reason—staffing shortfalls—employers would likely not institute across-the-board vaccine mandates, for fear of pushing workers out of their jobs, but the mandates could be a useful tool if applied only to employees in certain positions.

Examples of places where a vaccine requirement might make the most sense for such employers? Homes for the medically fragile, Gibson says, as well as houses and programs that employ staffers who move between multiple locations.

The industry group representing long-term care facilities, the Oregon Health Care Association, did not respond to repeated requests for comment. And labor unions representing health care workers declined to offer a defense of the prohibition on vaccine requirements.

The Oregon Nurses Association declined to weigh in on mandates, but made an argument that employers should provide more incentives for vaccination, while noting nurses are already vaccinated in higher numbers than the general population. “Companies must ensure workers who want to get vaccinated can do so conveniently, including by providing paid time off for vaccine appointments,” says ONA spokesman Kevin Mealy. “In addition, companies should provide robust vaccine education, ensure paid sick time for all workers who need it due to vaccine side effects, consider worker incentives, and ensure that any and all future ‘boosters’ are supported in the same ways.” Service Employees International Union Local 49 did not respond to repeated requests for comment.

No bill to reverse the 1989 law was introduced in the last legislative session. At least one lawmaker says that should change.

Employers “should be able to require the COVID-19 vaccine for people who come into contact with patients in all health care settings,” says Rep. Lisa Reynolds (D-Portland).

In a conversation with WW, Reynolds, a pediatrician, pointed to the Hippocratic Oath, which stipulates doctors must do no harm.

“We are in a unique position,” she says. “When we take care of people whom we can make sick and we can prevent [it] with a vaccine, we have a special responsibility to do that. We still know that there are 30% of Oregonians who are not vaccinated, and if they’re unvaccinated, they’re at risk of making their patients sick.”