In Oregon and across the country, a growing segment of health care workers are calling for mandatory vaccinations for their colleagues to ensure COVID-19 doesn’t spread among staff members or patients.
Last Tuesday, multiple major health organizations declared health care workers should have to get COVID-19 shots. Last Wednesday, Oregon’s lobbying arm for hospitals said employers had to be able to make such mandates.
But, in Oregon, a 32-year-old law stands in the way.
Oregon appears to be the only state in the country that explicitly prohibits health care organizations from mandating vaccinations for workers.
Employers for nearly every other profession in Oregon can require vaccines among staff. In some states, health care staff are among the few groups specifically targeted for mandatory vaccinations.
Oregon’s outlier status is puzzling, even to the people responsible for creating it.
“Now, why the hell did we do that?” said former Sen. Wayne Fawbush, D-Hood River, one of the sponsors of the 1989 legislation that is now preventing health care workers from being mandated to get shots.
Had he understood all the implications of the law, Fawbush said, he probably would not have supported it. In today’s world, the law likely endangers health care workers who encounter COVID-19 patients, he said.
“The context has changed dramatically,” Fawbush said.
COVID-19 vaccinations have been available for health care workers for seven full months, yet uptake among some remains remarkably low. And Oregon legislators, who just finished a five-month lawmaking session, did nothing to address the vaccination carve out, which also applies to firefighters, law enforcement and corrections officers.
Dorit Reiss, a law professor and vaccine expert at the University of California, Hastings College of the Law, in San Francisco, has reviewed laws and executive orders relating to COVID-19 vaccine mandates in all 50 states, and found that only in Oregon are health care workers protected from losing their jobs if they refuse to get vaccinated.
“If there’s one place where you would allow vaccine mandates, it’s for health care workers,” Reiss said. “Oregon has it kind of the other way around from what you would expect.”
The exemption was tucked into a 1989 bill focused predominantly on ensuring health care workers were informed if they were exposed to patients with infectious diseases, a particularly important issue at the time because of the HIV epidemic.
But records of the committee hearings make no mention of the vaccine exemption that’s become such a hot topic 32 years later. An earlier version of the bill limited the exemption to emergency responders, legislative records show.
The law prohibits employers from making vaccinations mandatory, saying licensed health care workers and health care facility employees “shall not be required as a condition of work to be immunized” unless other state or federal laws or regulations require a vaccine.
While vaccinations across the entire population will be key to ending the COVID-19 pandemic and reducing associated health risks, immunizing staff in hospitals and other health care settings is particularly important, experts said.
Health care workers who refuse to get vaccinated and later become infected and sick could leave hospitals understaffed, experts said. Or they could become infected and unknowingly spread the virus to coworkers, people with compromised immune systems or patients who have not been vaccinated, leading to further disease in their communities.
“Workers deal with the most vulnerable people in our society,” said Ann Marie Pettis, president of the Association for Professionals in Infection Control and Epidemiology. “That’s why, ‘First do no harm,’” she added, noting the overarching message of the Hippocratic Oath that physicians take.
But unions representing some workers say health systems shouldn’t get to dictate what employees put into their bodies. They point to high vaccination rates among nurses, in particular, as evidence the existing system is working just fine.
“We believe there is much more work corporations can do to protect workers and increase vaccination rates before they begin firing working Oregonians during a pandemic,” Scott Palmer, a spokesman for the Oregon Nurses Association, said in a statement.
Oregon’s law makes Margie Willis nervous.
The 68-year-old retired biologists regularly goes to Oregon Health & Science University for medical appointments tied to her previous liver transplant and numerous other underlying health conditions, including multiple autoimmune diseases, osteoporosis and high blood pressure.
Although she is vaccinated for COVID-19, the medications she takes to protect the transplanted liver from her immune system make it unlikely that the vaccine will protect her from an infection. And, because she has a transplant, an infection is far more likely to have serious and potentially fatal outcomes.
Willis barely leaves the house and has only recently started to see family again, if rarely, because of her fear of contracting the coronavirus. The hospital is one of the few places she allows herself to go with any regularity, even though she is afraid of being exposed to an unvaccinated worker.
“Health care workers are there to protect your health, not put it at risk,” Willis said. “It makes no sense as a law. It seems so irrational.”
‘This is not coercion’
Nothing in federal law prohibits employer-mandated vaccinations for health care workers.
And the principle has already been tested in the federal courts. A 26,000-employee hospital system in Houston won a case earlier this year after workers sued the hospital for mandating vaccinations.
“This is not coercion,” District Judge Lynn Hughes wrote in her decision siding with the hospital. “Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer.”
At least 34 health systems nationally have mandated their employees get vaccinated, according to a review by industry publication Becker’s Hospital Review, including in states such as Tennessee, Idaho and Missouri.
Numerous national health care groups joined forces this month to say health care providers should mandate that their employees get vaccinated against COVID-19, citing research showing the dramatic success of similar mandates for flu shots.
“Prior experience and current information suggest that a sufficient vaccination rate is unlikely to be achieved without making COVID-19 vaccination a condition of employment,” the organizations wrote.
As an example, just under 70% of health care employees who didn’t have to get a flu shot in the 2019 to 2020 season got one, compared to nearly 95% of employees who did have to, according to research cited by the Society for Healthcare Epidemiology of America and the six other medical organizations.
The vaccination goal should be at least 90%, said Dr. Hilary Babcock, an infectious disease expert who co-authored the organizations’ July 13 statement urging employer-mandated vaccinations.
“It’s very hard to get there and sustain it,” Babcock said.
Low vaccination rates among some workers may lead to broader implications, she said.
“Anything that limits, minimizes, diminishes the number of people who get vaccinated extends the duration of the pandemic,” Babcock said.
The Oregon Association of Hospitals and Health Systems joined the push, saying it supports a change in Oregon policy to allow mandatory vaccinations of health care workers.
“It is unconscionable to leave tools on the table during a global pandemic,” Becky Hultberg, president and chief executive officer of the organization that advocates for hospitals, said in a statement Wednesday. “It’s well past time for state leaders to address this misguided policy.”
Some Oregon vaccination data demonstrate success even without mandates. Nearly nine in 10 medical doctors are vaccinated for COVID-19, according to the Oregon Health Authority, and 94% of dentists. Nearly three in four of Oregon’s 39,000 nurses have received shots.
But there are major differences among the license types, with some who interact with the most patients on a regular basis seeing the lowest vaccination rates. Less than 60% of Oregon’s 13,000 certified nursing assistants have received shots for COVID-19, and the rate of new vaccinations is plateauing, state data show.
That’s well below that state’s overall vaccination rate, with nearly 71% of adults now at least partially vaccinated, according to federal data.
The state’s chief health agency, the Oregon Health Authority, acknowledged there’s a problem with low vaccination rates among Oregon’s health care workforce.
While health care workers aren’t the only ones at risk of infection, exposure to COVID-19 is “definitely part of the work that they do,” Oregon’s Chief Medical Officer Dr. Dana Hargunani said. “And, so, reducing the risk is going to be critical, both through vaccination and other infection control practices.”
Hargunani acknowledged more workers need to be inoculated.
“We definitely are not satisfied with some of the vaccine rates, and we want to see it move up,” Hargunani said.
Some of Oregon’s chief health systems appear to have resigned themselves to the fact that they can’t mandate that their employees get vaccinated.
Providence Health & Services said it doesn’t know for sure how many of its workers have been inoculated because a COVID-19 shot can’t be a condition of employment.
Legacy Health said more than 84% of its employees have received COVID-19 shots, and that those who decline must fill out a form acknowledging their risk of exposure at work.
Kaiser Permanente said the “majority” of its frontline health care workers who have been offered the vaccine accepted it, though the health system declined to provide a rate.
Oregon Health & Science University said about three in four of its staff and students have been immunized.
Nurses’ union pushback
Most businesses in Oregon can require vaccinations among employees, whether someone works in a warehouse or an office, allowing for exceptions for people with disabilities or certain religious beliefs.
It would take a new law, or federal or state regulations, to override Oregon’s carveout for health care workers, police officers and firefighters.
While the federal government recommends that health care workers get vaccinated, it hasn’t yet made that a mandate. State lawmakers won’t convene again until January and it’s unclear if they’ll have the appetite to propose any changes during the short session.
The Oregon Association of Hospitals and Health Systems, which issued its statement this week a day after the national push among health care organizations, had no “legislative conversation” in the last session to advocate for a change to the law, spokesman Dave Northfield said in a text message, and no bills targeting the law were introduced.
But, he said, “It’s time to address it now.”
The group urged the health authority to pursue changes through administrative rules rather than wait for a change to state law, saying the agency “could write a rule ending this prohibition.”
The state health authority acknowledged it has some administrative options.
The agency said it can’t write a rule that would give employers the choice whether to require employees to get vaccinated. But it could issue a statewide mandate that all health care employers require that their staff be vaccinated, which the hospital association said it is not advocating for.
No organization has asked the health authority to pursue a statewide requirement, spokesman Robb Cowie said, though the agency is all ears.
“We’re open to all options,” Cowie said in a written statement. “We welcome the conversation with doctors, nurses and anyone else who is interested in helping us raise vaccination rates.”
Meanwhile, the just-completed 2021 legislative session offered an opportunity to eliminate the prohibition on required vaccinations. But Rep. Lisa Reynolds, D-Portland, said that because vaccines were in short supply for months, the issue became pertinent too late in the session to be made a priority.
Reynolds said the original rationale is of little consequence because the results now endanger patients.
“We need to do everything else as a profession, as a healing profession, to make sure we aren’t harming our patients,” said Reynolds, a Portland pediatrician.
Reynolds wouldn’t commit to filing a bill in the short legislative session coming up in January, however, saying it would depend on if there’s buy-in from other lawmakers.
The nurse’s union continues to be a political powerhouse, and the source of resistance in recent years to the hospital association’s previous requests to change the law, said former Sen. Laurie Monnes Anderson, D-Gresham, herself a retired nurse who until recently chaired the Senate Health Care Committee.
The hospital association regularly approached her asking for a bill to pull the law back, Anderson said, to which she would reply they needed the nurses on board, “or else it’s not going to happen.”
Fawbush, one of the sponsors of the original law, said it was possible that lawmakers included the ban on mandatory vaccinations to “appease some of the folks who were against it in order to get the damn thing passed.” He would not say, however, who those people may have been.
“Some things don’t change,” Fawbush said with a laugh when asked who might have needed appeasing 32 years ago.
OSHU testing ‘requirement’
Oregon Health & Science University is implementing a COVID-19 vaccination requirement starting Sept. 1, “to the fullest extent allowed by law.”
But all employees will be able to ask for a religious, medical or “nonmedical” exemption, in which case they will receive vaccine education, spokeswoman Franny White said in an email. The university is still working out the precise parameters of what White said is a “requirement,” not a “mandate,” meaning employees will have a choice.
It’s doubtful anyone at the university will truly have to get a vaccination in order to keep their job. OHSU is still figuring out what it will do if a worker neither gets a vaccine nor asks for an exemption or asks for an exemption but doesn’t take vaccine education.
But whether a health care worker is vaccinated won’t affect patient well-being, White said in an email.
“This is a safe place for people to receive health care,” White said. “We don’t want to harm our patients. We are here to help them.”
Sitting on her back patio, Willis, the OHSU patient who visits the campus as many as six times a month, frequently teared up when talking about people choosing to get vaccinated.
She called it an “an act of love” and an “act of kindness.”
Willis devoted her life to science and conservation, with her favorite gig leading natural history tours in Costa Rica. This year, the lush garden behind her back patio has kept her going, with apple and pear trees, raspberries, tomatoes, beans and dahlias giving her plenty of things to do each day.
But she wants to get out, and she doesn’t want to have to be so careful to protect herself when she leaves her home.
Willis said she is perplexed why people would decide not to get vaccinated, given the risks of getting a shot are so low, while the risk to her of getting seriously ill if infected is extraordinary.
“You know, I could get bad complications. I could die,” she said. “I’ve got things I still want to do in this world. I have contributions to make.”