FAQ VACCINE MANDATE RESPONSE (updated 9-17-21)

Greetings,

AEE has already received a number of questions and comments about the Governor’s announcement about vaccine mandates for State employees. This is a subject that our members feel very strongly about, including members who strongly support the Governor’s decision and some who strongly feel that the decision to get vaccinated should be theirs alone. Many have asked that AEE oppose the mandate or aggressively bargain limitations on the decision, while others have raised concerns about AEE filing the demand to bargain out of a fear that taking that action might prevent the Governor from implementing the mandate.

We have put together some quick responses to some of the questions we have received, or clarifications in response to comments to help avoid confusion about what AEE has and has not done at this point. To be clear, AEE has not made any proposals to the State in response to the mandate announcement. We will be formulating our proposals after receiving input and feedback from the membership about what our priorities should be. Our bargaining team will continue to communicate with the membership throughout the process to make sure that we put forward the best possible proposals to address members’ concerns.

Frequently Asked Questions

AEE Mandatory Covid Vaccination Executive Order Bargaining

Frequently Asked Questions: 9/16/21 Update

IMPORTANT NOTE: Many employees are submitting their concerns and questions about the mandate through their State email addresses. We would advise employees to utilize their personal email addresses whenever possible, because your State emails can be reviewed by your employer and may be subject to disclosure under the Oregon Public Records Law. So, unless you want your boss and potentially the Oregonian to see your messages, try and avoid using State email addresses or computers to send important communications about this or other union matters.

BACKGROUND FOR Frequently Asked Questions: AEE has received many questions and comments about the Governor’s announcement about vaccine mandates for State employees. This is a subject that our members feel very strongly about, including members who strongly support the Governor’s decision and some who strongly feel that the decision to get vaccinated should be theirs alone. Many have asked that AEE oppose the mandate or aggressively bargain limitations on the decision, while others have raised concerns about AEE filing the demand to bargain out of a fear that taking that action might prevent the Governor from implementing the mandate.

We have put together responses to some of the more frequent questions we have received, or clarifications in response to comments to help avoid confusion about what AEE has and has not done at this point.

To be clear, as of September 16, 2021, AEE has not received any proposals from the state, nor any responses to the proposal we sent on August 26, 2021 (other than some cursory oral rejections on September 3, 2021, to some of the concepts we proposed). AEE has been very vocal that this delay is not acceptable to our employees, and we have made it clear to DAS that a response is expected ASAP. DAS stated that they expect to have a response to AEE prior to Friday, September 17, 2021, which is our next scheduled bargaining meeting.

Q 1. Why did AEE file a demand to bargain over the Governor’s decision?

A. Regardless of whether you agree with the decision to require vaccinations or not, the mandate will have direct impacts on employees’ working conditions, including most obviously employee health and safety. It also presents questions about who will pay for the vaccines, when employees will be required to get the vaccine, whether employees should have to utilize their own sick leave if they have adverse reactions to the vaccine and need to take time off or if the State should cover that time with administrative leave, how employee privacy will be ensured with respect to the State enforcing the mandate and protecting medical information, and how to process exemptions for employees with bona fide religious objections or significant medical conditions that make vaccinations more dangerous. AEE has a legal and moral duty to represent all employees in the bargaining unit when it comes to their working conditions, and we would be remiss if we did not bargain with the State over these issues in order to pursue a fair, equitable, and safe implementation of the mandate.

Q 2. What is a demand to bargain?

A. Although the term “demand” to bargain may sound severe or combative, the phrase is a labor law term of art that simply refers to the way in which AEE and other unions tell employers they wish to bargain over something that impacts the working conditions of its members. This demand to bargain then triggers the employer’s legal obligation to bargain in good faith with the union. As noted above, AEE has a legal and moral duty to try and negotiate fair and reasonable terms and conditions of employment for bargaining unit members.

Q 3. Is AEE trying to stop the vaccine mandate?

A. No. Although we understand that some members would like us to do so, it is unlikely that AEE would have any viable legal option to challenge the Governor’s vaccination mandate. But more importantly, AEE’s leadership would not make that kind of decision without input from the membership. Employee health and safety is of great importance to AEE, and we support actions to promote those goals. We are analyzing the Governor’s order and reviewing options to ensure that our members are protected while striving to ensure that any safety protocols or procedures will respect employees’ privacy and legal rights. That may be a difficult balance to strike in a manner that makes everyone happy, particularly without significant input from members, but our bargaining team will do its best to develop proposals that reflect the interests of the members.

Q 4. Can the State implement this change before it bargains with AEE?

A. Under the Public Employee Collective Bargaining Act, the State should not implement the mandate until bargaining is completed (i.e., an agreement is reached, or the parties reach impasse after the required 90 days of bargaining). If the State implements the mandate before completing its bargaining obligation, it would likely be an unfair labor practice. However, the State may take the legal position that the public health emergency would justify implementing the decision before bargaining is completed. Disputes about the obligation to bargain would be resolved through the Employment Relations Board’s unfair labor practice procedures.

Q 5. Can the Governor force State employees to get the vaccine?

A. Yes, subject to collective bargaining with AEE. The Supreme Court of the United States has upheld compulsory vaccination laws. Jacobson v. Massachusetts, 197 U.S. 11 (1905). Moreover, the Oregon Supreme Court has acknowledged that the Governor has broad authority under ORS Chapter 401 and 433 to take a wide variety of actions in response to the pandemic that have some impact on constitutional rights. In the recent Elkhorn Baptist Church, et al. v. Brown case, the Oregon Supreme Court affirmed the Governor’s authority to enact limitations on how many people could lawfully be allowed in religious services due to the pandemic. 366 Or 506 (2020).

Q 6. Why isn’t the Governor requiring Judicial and Legislative employees to take vaccine?

A. Under Oregon’s Constitution, the three branches of government—executive, judicial, and legislative branches—are separate entities and each has some inherent powers that cannot be encroached on by other branches. This is commonly referred to as “separation of powers.” As a result, Governor Brown cannot force judicial branch employees to get vaccinated, that authority is left to the Chief Justice of the Oregon Supreme Court and the Oregon Judicial Department. Likewise, Governor Brown cannot force legislative branch employees to get vaccinated, that authority is vested with the Oregon Legislature as a body. The judicial and legislative branches have enacted their own COVID-19 restrictions and safety practices.

Q 7. How can the FDA fully approve the use of the Pfizer vaccine if the vaccine actually being administered in the US currently is not the Comirnaty vaccine the FDA approved in their August 23, 2021, approval letter to BioNTech Manufacturing GmbH (Pfizer)? Is the Pfizer vaccine current being administered in the US still being administered under the Emergency Use Authorization (EUA)?

A. As far as we can tell from the available FDA and CDC information, Comirnaty is just the name that the Pfizer vaccine is going to be marketed under and it is the same vaccine that was initially approved for emergency use and later approved fully by the FDA for use in people who are 16 years of age or older. The vaccine is only subject to the limited EUA for individuals aged 12 through 15 and with respect to the use of third doses for immunocompromised individuals. Ongoing studies are being completed before the FDA decides whether to grant full approval for these uses. Before Pfizer makes any material changes to the vaccine, it must seek FDA review and approval.

Q 8. I read ORS 431.180, which seems to prohibit the Oregon Health Authority from telling me who my medical provider is or what medical treatments I must receive, if any. So how can the Governor force State employees to get vaccinated?

A. ORS 431.001 through 431.055 confers certain powers and limitations on the power of the Oregon Health Authority. ORS 431.180(1) provides statutory protection for individuals to select their own health care provider and generally make their own choices about whether to receive different types of medical treatments (or to refuse them). That statute provides in part that:

“Nothing in ORS 431.001 to 431.550 and or any other public health law of this state shall be construed as authorizing the Oregon Health Authority or its representatives, or any local public health authority or its representatives, to interfere in any manner with an individual’s right to select the physician, physician assistant, naturopathic physician or nurse practitioner of the individual’s choice or the individual’s choice of mode of treatment, nor as interfering with the practice of a person whose religion treats or administers sick or suffering people by purely spiritual means.”

This statute protects individuals from having OHA force them to accept a specific medical provider, or to accept a specific treatment. For example, OHA could not come to an individual employee and say you cannot see Dr. Smith, you have to see Dr. Jones. Likewise, it cannot force you to accept chemotherapy treatment for cancer if you choose not to accept that treatment for various reasons, including religious objections. Thus, OHA cannot physically force you to accept a vaccine shot over your objections.

What it does not do is prohibit the State, as an employer, from establishing vaccination as a condition of employment. The employee in that case has a choice: accept the vaccine voluntarily or potentially face the loss of their job. The decision is certainly made under the threat of adverse consequences should an employee decide not to get a vaccine, so the State is exerting its authority to incentivize the employee to make a specific decision, but that does not in and of itself render the pressure unlawful. This is similar to requiring employees to work mandatory overtime. In some sense, an employee is being forced to work against their will, which would be unlawful under most if not all circumstances. But the employee has the choice to refuse to work, even though that can subject them to discipline and even termination of their employment. Moreover, the employee has a choice whether to seek and accept the job in the first instance. Again, the decision to work the mandatory overtime is not made without some threat of adverse consequences, but it is still an inherent part of the job that is not illegal.

Perhaps more clearly, in a public health emergency, OHA, the Governor, and other public health officials have broad authority to require measures such as vaccines in response to the emergency. This includes the broad emergency authority of the Governor under ORS Chapters 401 and 403, as well as the express authority of the Public Health Director to “require a person to obtain treatment and use appropriate prophylactic measures to prevent the introduction or spread of a communicable or reportable disease” unless the person has a medical or religious or conscientious objection to the treatments. See ORS 431A.015(2)(d). The vaccine mandate does provide for these exemptions, and employees do have the choice not to receive the vaccines but may face adverse employment consequences.

Q 9. I read that under ORS 433.416, an employer cannot require workers to be vaccinated. How can the Governor then mandate that State employees receive the COVID-19 vaccine?

A. ORS 433.416(3) prohibits mandatory vaccines only for a narrow group of employees who work “a person who is licensed or certified to provide health care under ORS chapter 677, 678, 679, 680, 684 or 685 or ORS 682.216, an employee of a health care facility, of a licensed health care provider or of a clinical laboratory as defined in ORS 438.010, a firefighter, a law enforcement officer as defined in ORS 414.805, a corrections officer or a parole and probation officer. See ORS 433.407(3) (defining worker for the purposes of ORS 433.407 through ORS 433.423). Also, ORS 433.416(3) only prohibits requiring a vaccine as a condition of employment “unless such immunization is otherwise required by federal or state law, rule or regulation.” Because there has been a declaration of a public health emergency, the Governor has broad authority under ORS Chapters 401 and 403 to take a variety of steps to respond to the pandemic. This likely includes the authority to mandate vaccines for State workers, especially AEE members who do not meet the definition of worker above.

Q 10. Can the State require me to provide proof of vaccination? What about my rights to privacy?

A. The State can require proof of vaccination, but proof of vaccination provided by the employee is medical information that must be kept confidential by the employer under the Americans with Disabilities Act (ADA). Unless the employer is a “covered entity” (e.g., health plans, healthcare provider), the federal Health Insurance Portability and Accountability Act (HIPAA) does not apply.

Q 11. If an employer has a mandatory vaccination program, must it provide reasonable accommodations to employees on religious or disability grounds?

A. Yes, if the employee meets certain legal thresholds for establishing a religious belief or disability. Simply stating in a conclusory fashion that “my religious beliefs” or “my medical condition” gives me a pass from being vaccinated is insufficient under the law. Further, once that legal threshold is met, a public employer’s accommodation need only be “reasonable;” the employee is not entitled to his/her preferred accommodation. That means that a public employer could, for example, reassign an employee to a different position and/or require the employee to wear a mask. And a public employee who refuses those reasonable accommodations is subject to termination. E.g., Horvath v. City of Leander, 946 F.3d 787, 792 (5th Cir. 2020).

Q 12. When do I have to be vaccinated by to comply with the Executive Order?

A. You must receive your last required vaccine shot by October 4, 2021, to be considered “fully vaccinated” under the order. Originally, the order required that employees be “fully vaccinated” by the later of October 18 or six weeks after the vaccine was fully approved by the FDA. Because the FDA fully approved the Pfizer vaccine on August 23, 2021, the later date is now conclusively established as October 18, 2021. However, to be “fully vaccinated” under the Order, you must have received your last required dose of vaccine two weeks before October 18, and you have to provide proof of vaccination by October 18. Please note that, for the two-dose vaccines, you need to allow for additional time between the shots to obtain the benefits of the vaccines (21 days between shots of Pfizer vaccine and 28 days between shots of the Moderna vaccine). As a result, to meet the deadlines, you must get vaccinated by the following dates:

J&J Single Dose: October 4, 2021
Pfizer Two-Dose: First shot by September 13, second shot by October 4
Moderna Two Dose: First Shot by September 6, second shot by October 4

Q 13. What does it take to obtain a “religious exemption” from the vaccine mandate?

A. AEE is currently bargaining with the State over the appropriate process for obtaining a religious exemption, but the State has issued some guidance on the process and what it will be looking for and a form to request the exemption. Some of the details are subject to change of course, but overall, the State will grant a religious exemption where an employee can identify a “sincerely held religious belief” that prevents the employee from receiving a COVID-19 vaccination. The employee will be required to, at a minimum, confirm that they have a sincerely held belief and to describe generally what that belief is and how it affects their ability to get a vaccine shot. At this point it does not appear that the State will try and require documentation of the religious belief, and the early DAS guidance suggests that the State will construe the religious exemption requirements in a way that is fairly open and broad that should allow employees a reasonable opportunity to successfully obtain a religious exemption. However, there is no guaranty that the State will follow this early guidance and implement the exemption process in a broad manner, so employees should always be aware that the State could view these exemptions much more narrowly than AEE believes it should. AEE has posted a link to a document DAS shared with us on August 25, 2021, on the AEE web site. This document is titled “Sincerely Held Religious Belief Vaccination Exemption Request Process Overview”. AEE suggests employees review this document for further guidance regarding religious exemption requests.

Q 14. What does it take to obtain a “medical exemption” from the vaccine mandate?

A. Employees may receive a medical exemption if they would be subjected to potential health risks if they were vaccinated. For example, if an employee had an allergy to any of the ingredients in the vaccine or had a medical condition that put the employee at particular risk of an adverse response, they would be entitled to an exemption. This is a right provided under the Americans With Disabilities Act.

Employees seeking a medical exemption must submit the Oregon Health Authority form seeking a medical exemption, indicating that they have some legitimate medical reason that receiving the vaccine would be risky or unsafe due to their medical condition. The employee will have to disclose the general medical condition, and the State will require certification from an employee’s medical provider confirming the medical condition so that they can assess the validity of the request and the potential accommodations that would be needed.

Q 15. If I obtain a religious or medical exemption, what does that mean for me when I work?

A. The State has an obligation to make reasonable accommodations in the workplace in response to religious objections or medical exemptions that prevent you from being forced to receive the vaccine. Those accommodations could mean that you are required to do things that your vaccinated colleagues are not, like wearing additional PPE (masks, face shields, etc.), submitting to COVID testing or symptom checks more frequently, following social distancing protocols, or working in remote or alternate worksites where you and your coworkers might have less chance of exposure to the virus. For employees who simply need additional time to get the vaccine due to a temporary medical condition, that would likely include receiving an extension of time in which the employee has to comply (whether that time is covered by employee leave accruals or some additional employer-provided leave is subject to bargaining between AEE and the State).

Q 16. If I’ve had Covid, why can’t a positive antibody test be accepted in lieu of a vaccination or exemption?

A. A positive Covid antibody test is not among the options provided by the Governor’s Executive Order, and it would potentially be a violation of the collective bargaining laws for AEE to pursue a proposal that would violate the terms of that Order. The State’s position is that the data on how long or how strong the body’s immunity to COVID is after the initial infection is not sufficient to demonstrate that natural immunity is as effective as the vaccine. There have been reports of second COVID infections, so at this point, the State does not consider that to be an adequate alternative. Studies into the levels of immunity are ongoing and may shed more light on this option in the future.

Q 17. For employees who are close to retirement eligibility, can AEE negotiate a deal allowing employees to voluntarily retire earlier than currently allowed under PERS, without decreasing the benefits they would receive in retirement?

A. No. Most aspects of PERS benefits are set by statute and rules enacted by the PERS agency, including critical things like retirement ages, vesting requirements, and benefit levels. The State cannot lawfully agree to any contract language that would modify aspects of PERS that are set by law, unless there was some change to the PERS statutes or regulations that allowed public employers to bargain such a program.

Q 18. What does the State require employees to submit to be considered in compliance with the October 18, 2021, deadline under the Order?

A. DAS has told AEE that any employee who has submitted proof of vaccination or either of the exemption requests by October 18, 2021, will be considered to have complied with the required deadline. Submitting an exemption request by that deadline does not guaranty that the State will grant the requested exemption, but at the time, the employee will be considered to have complied with the Order.

Q 19. Will my employment be terminated on October 19, 2021, if I am in the process of becoming fully vaccinated or if my exemption request has not been approved by October 18, 2021?

A. Not immediately, but employees may risk losing their jobs in the future if they do not comply and the State follows the appropriate procedures. Those procedures and what happens to employees who do not comply are part of what AEE is bargaining over with the State, but DAS has agreed that both the due process and just cause requirements under the AEE contract will be followed in determining the appropriate action if an employee does not meet the deadlines. No specific information as to how that process might work has been shared to date, and if we do not have an agreement with the State soon it is likely that AEE will be pursuing grievances on behalf of employees who are not treated appropriately. We encourage any represented employees who do not comply with the deadline to reach out to an AEE representative before you meet with any management representative about the situation. We will do everything we can to ensure that all employees’ rights are respected, and contractual requirements are met before any employment actions are taken.

For employees who are making good faith efforts to comply with the deadlines but are unable to do so through no fault of their own, AEE believes that employees should and likely will be allowed to take paid leave while they work to become fully vaccinated. For example, in cases where medical exemptions are needed because an employee simply needs time to recover from a temporary medical condition (e.g., where they may be recovering from a surgery or illness that compromises their immune system temporarily), or where the employee needs some additional time to get vaccinated after the State denies their exemption request, employees should be able to utilize their sick, comp, or vacation leave at a minimum to cover any time they are unable to work under the mandate. AEE also believes that some part of this time at least should be covered by the State as administrative leave or something similar, rather than having employees burn their earned leave due to the State-required mandate. That is subject to bargaining, however, and the State has not expressed a willingness to agree to that concept to date.

Q 20. What is AEE’s recourse if the State keeps delaying their response to AEE’s August 26, 2021, proposal associated with the Demand To Bargain process?

A. AEE is working carefully with legal counsel to explore all of the options, but if the State continues to ignore its bargaining obligation, AEE could file an unfair labor practice with the Oregon Employment Relations Board to obtain an order requiring the State to bargain in good faith and other possible remedies. AEE will also be exploring other options to convince the State to come to the table and actually bargain over the impacts of this very stressful and very important issue. Our efforts will be most successful if employees are willing to volunteer some time to assist if it becomes necessary.

For a printable copy of this FAQ, click here.

(ADDED on Sept 4, 2021)

List of documents - Mandatory vaccination draft policy, processing instructions for exemptions, as well as draft form for a medical exemption that DAS shared:

If you have questions or concerns, please email the AEE Office at, office@aeeo.org.

AEE OregonAugust 11, 2021