Governor Kate Brown announced a COVID-19 vaccine mandate on August 10, requiring all employees of the Executive Branch to be fully vaccinated by October 18. Our union immediately issued a demand to bargain, and we circulated a survey to determine what to prioritize during bargaining. On Monday, September 20th, SEIU reached an agreement with the State on the Vaccine Mandate implementation.
Latest Update: Read the recent news! SEIU members reach agreement with State on Vaccine Mandate implementation.
Vaccine Mandate Survey Results: Read the results of the recent member Vaccine Mandate Impact Bargaining Survey.
The Governor released the details of the executive order on Friday, August 13. This was our first look at the actual language of the mandate. Here’s a summary of the order and answers to some of the most frequently asked questions we’ve received.
Summary of Executive Order No. 21-29
- The executive order prohibits any employee from working for the Executive Branch after October 18 if they are not fully vaccinated against the COVID-19 virus.
- The order states that employees must provide proof of vaccination or a written request for exemption by October 18.
- It orders agencies to make reasonable accommodations to comply with the Americans with Disabilities Act and Title Vll of the Civil Rights Act, and state law equivalents, for individuals unable to be vaccinated due to disability, qualifying medical condition, or a sincerely held religious belief.
- Employees who fail to comply with this directive will face personnel consequences up to and including separation from employment.
Frequently Asked Questions
What does the mandate say?
The mandate prohibits anyone from working for the Executive Branch after October 18 if they have not been fully vaccinated against COVID-19. Exceptions are provided for disability, qualifying medical conditions, or sincerely held religious beliefs.
Exceptions aside, This will include all SEIU 503 members, including remote workers.
Does the State have the authority to do this?
Yes. Once the FDA approved the vaccine, employers have the legal right to mandate vaccines. (Up until early September, the vaccine has been under a temporary emergency authorization.)
Does this policy make vaccines mandatory for all State Workers?
Yes. The mandate includes some exceptions for disability, qualifying medical conditions, or sincerely held religious beliefs.
Exceptions aside, This will include all SEIU 503 members, including remote workers.
What about the law prohibiting healthcare workers from being subjected to a mandate?
The Oregon Health Authority has the power to override the prohibition in 433.416.
433.416 When employer to provide preventive immunization.
(1) An employer of a health care worker at risk of contracting an infectious disease in the course of employment shall provide to the worker preventive immunization for infectious disease if such preventive immunization is available and is medically appropriate.
(2) Such preventive immunization shall be provided by the employer at no cost to the worker.
(3) A worker shall not be required as a condition of work to be immunized under this section, unless such immunization is otherwise required by federal or state law, rule or regulation.
Can I be fired or disciplined if I refuse to be vaccinated?
Yes. Exceptions aside, employees who fail to comply with the mandate could face personnel consequences up to and including separation from employment.
We bargained language that prohibits the Employer from beginning personnel action if the employee has begun the vaccination process or submitted a written request for an exception by October 18, 2021.
Employees who have begun the vaccination process (received at least one dose by October 18) will have until November 30, 2021 to become fully vaccinated. If not fully vaccinated by November 30, 2021 the employee may face personnel action.
Employees who have filed an exception request on or before October 18, 2021 will not face personnel while they await a decision on their exception request. After October 18, 2021 if a denial is issued, the employee will have seven calendar days to begin the vaccination process (receive first dose) before personnel action is taken.
What are the exceptions?
The Employer must make reasonable accommodations in order to comply with the Americans with Disabilities Act and Title VII of the Civil Rights Act, and state law equivalents, for individuals unable to be vaccinated due to disability, qualifying medical conditions, or a sincerely held religious belief.
What is the deadline to get vaccinated?
The executive order requires employees to be fully vaccinated by October 18. Fully vaccinated means the employee is 14 days past the second dose of Pfizer (Comirnaty) or Moderna, or one dose of J&J.
The safest thing to do is get the vaccine right away.
- September 7 – Recommended last day to get the first dose of a two-dose vaccine (Pfizer (Comirnaty) or Moderna). This allows for four weeks between doses and the 14-day waiting period, and will ensure full compliance with the policy by October 18, 2021.
- October 4 – Last day to get final dose of Pfizer (Comirnaty) or Moderna (or first dose of J&J) to be in full compliance with the policy.
- October 18 – Deadline to be fully vaccinated and in full compliance with the policy. Those that are partially vaccinated will need to work remotely, or if remote work is unavailable, utilize vacation or compensatory time or leave without pay until they are fully vaccinated.
- November 30 – Deadline for partially vaccinated workers to be fully vaccinated prior to personnel action.
What if I’m only partially vaccinated by October 18th?
We bargained language that prohibits the Employer from beginning personnel action if the employee has begun the vaccination process by October 18, 2021. If an employee has begun that process (received at least one dose) by the deadline they will have a grace period until November 30, 2021 to become fully vaccinated, however during this time the employee will need to work remotely, or if remote work is unavailable, utilize vacation or compensatory time or leave without pay.
What if I haven’t heard whether my exception was approved by October 18th?
If an employee requested an exception but has not received approval or denial from the State by October 18th, the employee will not face personnel actions until at least seven calendar days after the denial is issued. Once a denial is issued, the employee has seven calendar days to begin the vaccination process (receive the first dose). Between the time of denial and when the employee becomes fully vaccinated, the employee must utilize vacation or compensatory time or leave without pay (employee’s choice).
Since reopening is delayed, does that mean essential staff required to be in office are getting the differential now?
In most cases, no. The state’s delay in reopening means that they will continue to have employees telework as is feasible, but work in-person where necessary. There are already agencies where SEIU-represented workers have been back in the office or out in the field for quite some time. This delay in reopening means that employees can continue to telework even if they don’t have an official telework agreement with their employer. The essential worker differential applies when an employee would otherwise have access to inclement weather/hazardous conditions leave (Article/LOA 123), but is required to report in person.
Staff who got the vaccine on personal time before this agreement get no compensation? If they do, how do they get it?
Unfortunately, we were not able to win retroactive leave for employees who were vaccinated prior to the mandate.
Employees who utilized their own leave after the mandate was in place (August 13th), should work with their payroll department to correct their timesheets/leave balances. Our contract language prohibits employees from having to use their own accrued leave to get vaccinated once the mandate was in place.
Is sick leave considered compensatory time, if so can we use that up before using VA or other time?
No. Sick leave is available for use if you are sick – including if you have adverse effects from the vaccine or if you get COVID – If you are on leave after October 18th because you haven’t yet been fully vaccinated, or because your exception was denied, sick leave is not available to you.
What is the union’s position on the mandate?
It is our analysis that employers have the legal right to mandate a vaccine, which is why our focus is on bargaining over how the mandate will impact members.
Our position at the bargaining table was member-directed. We conducted a survey of the membership to make sure the bargaining team is prioritizing the issues that matter most to our members, over 6000 members responded and our bargaining team was able to win language to address the priority concerns of our members: safety in the workplace, a clear exceptions process, and leave for the vaccination and side effects.
What is the Union doing to stop this?
Our analysis is that we can not prohibit the State from implementing a vaccine mandate. That said, our Union issued a demand to bargain with the State over the implementation of this policy and have completed negotiations with them. You can read the Letter of Agreement we negotiated. Prior to bargaining we conducted a survey of the membership to make sure the bargaining team prioritized the issues that mattered most to our members, more than 6000 members responded and our bargaining team utilized that guidance when negotiating the LOA.
At a non-union job, policies like this would be unilaterally implemented without any input from workers. Because we have a union we got a say in how this happens.
Will the Union file a lawsuit to prevent the implementation of this policy?
No. The U.S. Equal Employment Opportunity Commission and the Department of Justice have both issued guidance on this point. The employer can mandate this and a lawsuit would be a waste of time. Instead, we can immediately bargain over the impact of the policy and use that process to protect members and have our voice heard.
Why didn’t we bargain over this mandate for the 2021-23 CBA (The contract we just settled)?
We reached a tentative agreement with the State on July 16 and members ratified the contract on August 29 with an overwhelming majority (over 97%) voting to approve the contract. The Executive Order was issued after we finished bargaining.
When employers change working conditions during the term of a contract, we can bargain over the impacts of that change through a process called interim bargaining. The law did not allow us to negotiate on whether the implementation will happen, but it did assure that union members had a voice in that process.
How does this impact our new contract, raises, hazard pay or the ratification vote?
It doesn’t. Our new contract has been ratified with over 97% of members voting to approve the contract – ensuring that we get our raises, hazard pay and other wins as fast as possible.
Isn’t this a violation of HIPAA?
No. In general, the HIPAA Rules do not apply to employers or employment records. The more relevant regulatory body is the U.S. Equal Employment Opportunity Commission, which has specifically issued guidance stating that “laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”
The Americans with Disabilities Act does require employers to keep this information confidential.
Source: U.S. Department of Health and Human Services
What if I have documentation that I have antibodies to COVID19, will that allow me to opt out of getting vaccinated?
No. The Executive Order states that a person must be “fully vaccinated” to comply with the mandate. That is defined as having two doses of a two-dose vaccine (Pfizer or Moderna) or one dose of Johnson & Johnson, and completing the 14-day waiting period after their final dose.
Is an exception and an exemption the same thing? I have seen both used.
The state is using the term exception to convey that religious and medical exceptions will not operate to exempt employees from the vaccine rule, but instead will be a starting place for an interactive process to determine whether an exception can be granted with other safety measures in place.
The ADA and related state disability protection law as well as state and federal laws regarding religious accommodations may enable exceptions to work rules through a reasonable accommodation process. It is the State’s expectation, as outlined in the executive order, that if an exception to the vaccine mandate is granted in a particular situation, there will be other measures implemented as part of the reasonable accommodation process to limit transmission of COVID-19.
Can an exception be granted temporarily or can my exception approval be retracted?
Yes. A medical exception might be temporary. The forms that your doctor fills out if you request an exception ask if the condition is temporary/how long it will last. Examples of potential temporary medical exceptions include recovery from COVID illness and pregnancy.
What is the recourse if an employee experiences serious injury from the vaccine?
There is a federal program, Countermeasures Injury Compensation Program (CICP), for injuries resulting from a vaccination, medication, device, or other item recommended to diagnose, prevent or treat a declared pandemic, epidemic or security threat. They are currently taking claims for injury related to the COVID-19 Pandemic.
What if my doctor says I can’t get the vaccine because I’m recovering from COVID?
Employees in this situation should apply for a medical exception. If granted, the exception would likely be temporary.
I’m pregnant, do I have to get vaccinated? What if I’m breastfeeding?
Employees who are pregnant or breastfeeding and don’t feel comfortable getting the vaccine can apply for a medical exception, but there will be no blanket exception granted for employees in these situations.
You can find updated CDC guidance for people who are pregnant and/or breastfeeding here.
What should I expect when I apply for a religious or medical exception?
According to the Chief Human Resources Office (DAS), the process for reviewing a request for an exception to the COVID-19 vaccination requirement due to a sincerely held religious belief is a confidential interactive process between the employee and the agency HR department.
Once the request is submitted, it goes to Human Resources and the agency ADA coordinator. The interactive process likely will include a meeting. Since this is following the ADA process, represented employees can have a steward in the meeting.
Employees should expect the agency to confirm their religious belief preventing them from receiving a COVID-19 vaccination and have them describe their religious belief and how it affects their ability to receive a COVID-19 vaccination. Agencies have been directed by DAS to NOT ask for documentation during this process.
When reviewing the request, HR should presume a religious belief to be sincerely held, remember that religious beliefs are not static and are susceptible to change
over the course of a person’s life, and remember that someone’s frequency observing their faith or how widely their faith is known does not limit its sincerity.
The process can include exploring alternatives to help prevent the spread of COVID-19 in the workplace. Determination of an accommodation will be made based on the employee’s essential functions of their position and absent undue hardship for the agency, similarly to how the agency would handle an ADA request based on disability.
The outcome of the request is provided to the employee both verbally and in writing.
Exceptions are documented in Workday and the letter is uploaded into the employee’s COVID-19 Documentation file. The accommodation does not have to be limited to what is requested by the employee.
For medical accommodations, the process will run similarly to the religious beliefs process. Unlike that process, this one will require some documentation from your medical provider. You should have access to the required forms.
Your medical provider will need to confirm that you cannot receive a COVID-19 vaccination due to a medical condition. They will need to disclose the condition, whether it is permanent or temporary and how it prevents you from taking a vaccine
Can I file a workers compensation claim if I am injured or harmed from my vaccine?
Yes. According to SAIF, when the administration of a vaccine occurs in the scope of employment (for example, a vaccine mandate), treatment or disability associated with adverse effects may be a compensable workers’ compensation claim.
Will I qualify for unemployment benefits if I quit or am fired because of this mandate?
Likely, no. The Oregon Employment Department recently announced that vaccine requirements during a global pandemic are reasonable policies and that workers who refuse to follow that policy may not qualify for benefits.