January 18, 2022
Now That the Supreme Court Struck Down the OSHA Vaccine-or-Test Mandate, Can I Require Employees to be Vaccinated?
Yes, private employers can choose to mandate vaccines, or a vaccine-or-test regime, for their companies. Both Oregon and Washington allow private employers to make these choices. Likewise, private employers can choose not to mandate vaccines or testing and require face masks or other measures to protect employees and visitors from COVID-19. Private employers must comply with ongoing face masking and other requirements issued by the state governments. Private employers must also allow for religious and medical/disability exemptions to vaccination schemes, as required by federal and state civil rights and privacy/disability laws. Bullard Law can guide employers in this process.
The Supreme Court’s decision only related to whether U.S. OSHA had the legal authority to issue a nationwide private employer vaccine-or-test mandate, and the Court stayed the proposed rule on the ground that U.S. OSHA did not appear to have such legal authority. The Supreme Court decision did not address whether there are any limits on what private employers can choose to do relating to COVID-19 at their own workplaces.
I’m Short-Staffed As It Is, Can I Choose Not to Require Vaccines?
Yes, private employers in Oregon and Washington can choose not to require vaccines or testing, unless you are in the healthcare field or education fields (which are subject to the CMS vaccine mandate and state mandates). However, private employers must still comply with state face masking and other requirements that remain in place statewide.
What is Oregon OSHA Doing Since U.S. Supreme Court Ruling Staying U.S. OSHA Vaccine-or-Test Rule?
Oregon Occupational Safety and Health Administration (OSHA) has announced that it will not move forward at this time with the Oregon Vaccination and Testing Emergency Temporary Standard (ETS) that it was in the process of adopting. Oregon OSHA updated its website with this news on January 13, 2021, shortly after the U.S. Supreme Court issued its decision temporarily blocking enforcement of federal OSHA’s ETS. That case will now be remanded to the U.S. Court of Appeals for the Sixth Circuit for a decision on the substance of the case and whether the federal ETS is permissible.
Oregon public and private employers are subject to Oregon OSHA standards, rather than the federal standards, after federal OSHA approved a state plan that it determined was “as effective as” the federal ETS. This left an open question as to whether Oregon employers would still need to comply with the Oregon ETS, despite the U.S. Supreme Court’s ruling temporarily blocking enforcement of the federal ETS. After Oregon OSHA’s announcement yesterday, the adoption of the state plan appears to be on indefinite hold, no doubt as Oregon OSHA awaits the fallout of the U.S. Supreme Court’s decision at the federal level.
In the meantime, Oregon employers should note that Oregon OSHA maintains a COVID-19 rule, having adopted permanent amendments to OAR 437-001-0744. Notice of Amended Rules Addressing the COVID-19 Public Health Emergency in All Oregon Workplaces. This rule requires employers to implement protections for workers in response to the COVID-19 pandemic. Those protections include infection control planning, exposure risk assessments, sanitation, and notification. Employers are also required to follow the Oregon Health Authority’s requirement to use facial coverings indoors.
Washington L&I Not Mandating Vaccines for Private Employers
Washington L&I is not mandating vaccines or a vaccine-or-testing regime for Washington’s private employers, except for healthcare employers. Washington, like Oregon, is a state-OSHA plan state, and if the U.S. OSHA vaccine-or-test mandate had been upheld, then Washington L&I would have complied and adopted some equally protective rule. However, since the Supreme Court ruling, no further action towards vaccine mandates for private employers in Washington is expected.
Bullard Law will continue to monitor these developments and post additional information as it becomes available. Contact Bullard Law if you have questions or would like assistance in responding to this rapidly changing situation.
The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.