(Photo | By Gustavo Fring from Pexels)
Are you having a déjà vu moment? I promise, this is not the same article you read in last month’s issue. Believe it or not, state and federal COVID-19 rules and regulations for employers have changed even since last month’s edition. We want to make sure you are operating in the current regulatory landscape.
Federal & Oregon Vaccine/Testing Mandate
The federal government’s private-employer vaccine and testing mandate is on hold and the State of Oregon is following suit. Shortly after the federal Occupational Safety and Health Association released an emergency temporary standard (ETS) implementing President Biden’s vaccine mandate for the country’s larger employers, lawsuits were filed challenging the implementation of the federal OSHA standard. On November 12, 2021, the United States Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s testing and vaccine standard until further court order.
In response, OSHA halted its original plan to enforce the testing and vaccine requirements that would have applied to private employers with 100 or more employees nationwide starting January 4, 2022. Another appellate court, the Sixth Circuit, will review the constitutionality of the vaccine and testing mandate and decide whether the federal government’s original standard can be enforced at all. If the court again ordered the rule not to be enforced, the federal government may decide to appeal the decision to the United States Supreme Court.
When OSHA originally released the ETS, Oregon OSHA anticipated issuing its own version of the vaccine and testing rule by December 4, 2021. For states that have an OSHA-approved State Plan (such as Oregon), the state’s OSHA has the authority to adopt accompanying state-specific rules that are at least as protective as the federal standard or to provide an explanation of how the federal rules coordinate with existing state laws and regulations. In Oregon, employers were especially interested to see how Oregon OSHA would determine employers’ responsibility for paying for mandatory COVID-19 testing, because Oregon statute requires employers to pay for medical examinations if the test is a condition of an employee’s job. Moreover, the Oregon OSHA rules would likely extend the federal vaccine and testing mandate to public employers within the state.
When the federal standard was blocked by court order, at first it appeared that Oregon would proceed with its own, similar mandate. However, Oregon employers will have to wait for Oregon-specific rules because, on November 18, 2021, the Governor’s office and Oregon OSHA published a statement explaining their intent to wait until the federal courts determined whether to lift or make permanent the stay that is currently in place.
Most recently, the federal contractor vaccine mandate met a similar hurdle. On December 7, 2021, a federal judge issued a nationwide injunction preventing enforcement of the vaccine mandate specific to federal contractors, which would have taken effect on January 4, 2022. The injunction relieves federal contractors and subcontractors across the country from complying with the mandate unless and until the injunction is overturned.
Oregon Outdoor Masking Mandate Lifted
Until last month, Oregon was the only state still imposing an outdoor mask mandate. However, on November 23, 2021, the Oregon Health Authority rolled back the part of its mask mandate requiring everyone to wear a mask in outdoor, public spaces where social distancing was not possible. Because Oregon OSHA never implemented rules to apply the Governor’s outdoor mask mandate to workplaces, employers will not have to wait for additional rule-making processes. The rollback of the outdoor mask mandate was effective immediately. The indoor mask mandate remains in effect until February 2022, unless specifically amended sooner. As part of its announcement, the Oregon Health Authority specified that there was no anticipated plan for lifting the remaining indoor mask mandates.
Updated Federal Resources for Fielding Religious Exemption Requests
For many employers, responding to a vaccine mandate gives rise to their first time fielding employee religious accommodation requests. There are two religious accommodation forms floating around the Internet from federal agencies that employers can use for employee religious exemption requests. One is the United States Equal Opportunity Commission’s own internal form, which the agency has made available on its website. The other is issued by the White House’s Safer Federal Workforce Task Force. The latter form was updated after the legality of some of the questions on the form were questioned. The updated version eliminates the questions about other medications the employee has abstained from using for religious reasons. Although these forms do not represent an official position by the agencies, the changes signal the evolution of the federal agencies’ opinion about employers questioning an employee’s medical history in an attempt to determine the sincerity of their religious objection to the COVID-19 vaccines.
Charlotte Hodde is an attorney at Barran Liebman LLP. For any questions related to navigating COVID-19 in the workplace, contact her at 503-276-2102 or chodde@barran.com.
