Stephen Scott

Anyone else have flashbacks to their first tetanus shot? I sure do. It is one of the first times I recall feeling pain for (what seemed like) an indefinite period. That memory of the pain bubbles up whenever I hear the word “shot.” However, since my son was born, my wife has watched me like a hawk to make sure that I get my yearly flu shot. So, last month I tried to deeply suppress my memories of my first tetanus shot and got my yearly flu shot. While getting my shot, the nurse informed me that I was receiving one of the last flu shots in stock for the week. I was shocked at first, but quickly realized getting the flu shot is at the front of everyone’s minds.

As the flu season approaches, and the COVID-19 pandemic continues, how employers in Oregon, and elsewhere, handle vaccines will be an ongoing pressure point. But I have a word of caution for Oregon employers who do a quick web search of “vaccine policies.” Be mindful that Oregon – unlike some states – has some laws that prevent some employers from requiring immunization as a condition of work.

While some regulations exist, it does not mean that employers should take a back-seat approach to employees’ health and wellness. In fact, the Centers for Disease Control and Prevention (CDC) has stated that getting the flu vaccine this fall will be important both to reduce health risks for individuals and to conserve the country’s potentially scarce health care resources, particularly for respiratory conditions like the flu and COVID-19.

In consideration of this current CDC guidance for flu shots, which should be administered as soon as possible, review and formalize inoculation policies now. Historically, when employers have encouraged employees to get flu shots, their decisions to do so have increased significantly.

That of course begs the question: What should we do? Should we do nothing, and hope people don’t get sick, or should we take a more proactive approach?

Many employers across the country are choosing to encourage flu shots rather than require them. Under such a policy, employees who do not get a flu shot will typically be required to wear face masks at all times while on premises or near co-workers, customers or patients. Just be mindful that this choice (require versus encourage versus do nothing) also represents a potentially enormous employee relations issue, which may be largely dependent on the nature of one’s business. However, it is better to start having internal discussions about vaccines now, because delaying them until a COVID-19 vaccine is available may cause even more headaches.

That begs the question: If we are going to encourage a flu shot, what should we do about the (fingers crossed) inevitable COVID-19 vaccine? Looking into my crystal ball, I anticipate that many employers will likely encourage, but not require, employees to receive the COVID-19 vaccine, if and when it becomes available. Requiring a vaccine (even if a law is passed specifically allowing Oregon employers to do just that) touches on deeply personal responses at a time when political differences and social justice issues remain at the forefront of the nation’s consciousness.

Even after a vaccine gets Food and Drug Administration approval and even if the Legislature grants employers the right to require its use, a substantial segment of the workforce may still be skeptical or resist receiving it for other reasons. Depending on the circumstances, resistance could invoke employees’ Section 7 rights under the National Labor Relations Act. If nothing else, unanticipated pushback by employees can create substantial disruptions and unhappiness.

This simply underscores the importance of thinking through the impact of encouraging vaccinations for the flu. Now is the time to work with an attorney on structuring a position on vaccines and their job-relatedness and business necessity. Once that is drafted, work together on developing how to present the new or revised policy to employees.

Ultimately, no one knows when a reliable COVID-19 vaccine may become available, but be prepared to respond when that happens. Keep in mind that while making vaccinations mandatory may not be appropriate for every setting (and may run afoul of ORS 433.416 – absent some federal/state law, rule or regulation), encouraging vaccinations now will help bolster participation and protect workplaces – while also helping reduce demands on our health care system. Recognize that although it may not be feasible to offer flu shots on-site this year, employers may still be able to facilitate their employees’ access to inoculations.

Consider these three final points. First, no matter your stance on vaccines, ensure that policies encourage sick workers to stay home without fear of reprisal, especially if they have a fever. Employees who are sick should remain home until they meet applicable return-to-work standards. Second, to encourage employee vaccinations, reach out to counsel to develop a policy. Finally, to stay up to date on this developing area of law, check out our vaccine resource center at www.fisherphillips.com/vaccine-resource-center.

Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or smscott@fisherphillips.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the DJC guarantees the accuracy or completeness of any information published herein.