On September 7th, 2021 the DCTU, LiUNA Local 483, and PROTEC17 held a multi-union town hall where we invited a panel of labor attorneys to address members' concerns related to the City of Portland's then-recently announced vaccine mandate. We were joined by Margaret Olney from Bennet Hartman, Kaitlyn Oldham of Tedesco Law Group, Dan Hutzenbiler of McKanna Bishop Joffe, and IBEW’s General Counsel Diana Winther. The following is a summary of these attorneys' responses to our questions, as well as excerpts from their direct answers (in blue). Bear in mind that this represents the state of the conversation on the 7th and certain elements may have changed in the interim as a result of bargaining.
Can the City impose a vaccine mandate? Why aren't we suing the City or seeking other legal remedies to prevent this from happening?
Yes, there is a longstanding history of both public and private employers having the right to impose vaccine mandates on their employees. The case law on this dates back over 115 years in the Supreme Court and has been upheld numerous times throughout the 20th and 21st Centuries in both Federal and State court decisions.
“I don’t believe there is any realistic chance of preventing these types of mandates. The case authority goes back over a hundred years from the United States Supreme Court, where they upheld a much broader mandate that applied to local citizenry, not just to employees. Obviously there are nuances and other cases, but the principle is well established that Government agencies can impose, as well as private organizations, can impose these types of mandates.”
The precedent is so well established here that any legal action to oppose it on our part would bear no chance of winning. We don’t have a legal leg to stand on. All it would do is drain union funds while preventing us from bargaining the impacts of the mandate in order to make sure it is enacted fairly.
“We would be taking member money that members are paying for legal advice, and we would be doing you a disservice by using those funds to do stuff that isn’t going to be helpful, that we’re going to lose, and that ultimately will waste a bunch of time, and also create problems for us at the bargaining table.”
Why do you say that we "don't have a legal leg to stand on," but Police and Fire are exempted?
Law enforcement officers and fire personnel are specifically exempted from vaccine mandates by ORS 433.416 unless a broad State or Federal mandate is issued requiring them to do so. Governor Brown’s vaccine mandate currently is not broad enough to encompass them, and as a result the City of Portland’s mandate cannot compel them.
“With the City, law enforcement is its own beast and they have their own set of statutes and regulatory rules that have a fairly significant overlap of state versus local authority.”
What about lawsuits from other unions?
There are not, in fact, a large number of union-led lawsuits in the State of Oregon opposing vaccine mandates. As of the 7th of September there was only one suit of dubious legal validity and with nearly no similarity to the circumstances of the City of Portland’s mandate.
“It is a lawsuit that was filed by individually named plaintiffs, some of whom are law enforcement officers. All of the individuals in that particular litigation are all folk that would be subject to the Governor’s mandate regarding healthcare workers and State Administrative Executive Branch employees, like State Police. So that is what that all relates to. The Governor’s mandate is different than the City and the Mayor of Portland saying we are going to do a vaccine mandate and we are going to demand that our employees get vaccinated.”
Are booster shots included in the mandate?
Not currently, but since the mandate broadly encompasses these vaccines, it is possible that it could become required in the future.
Are employers like the City of Portland legally required to protect employees from viruses, such as the COVID-19 virus?
In short, probably. The COVID-19 pandemic has been ongoing for nearly two years now and millions have died worldwide. As an employer, the City has a responsibility to provide a safe and healthy work environment or else they could be held liable for negligence were they to allow COVID outbreaks to continue unabated. This mandate would protect against that potential liability.
“Let’s say you work at a factory and there is a massive hole in the floor that is 20 feet deep and your employer does nothing to put any kind of gate, barrier, tape, anything around it, so it’s just there in the middle of the floor and the employees are somewhat aware that it’s there but […] it’s not drawing any attention to itself. Let’s say an employee reports that hole in the floor to the safety manager for that facility and the safety manager does nothing about it. And let’s say the next day an employee falls into that hole and breaks their arm. Guess what? The employer is liable because the employer didn’t do anything to keep that workplace safe and healthy and didn’t do anything to protect the employees.”
Is there a difference between the use of the terms "Exception" and "Exemption"?
No.
“There is no distinction between those two terms. They are used interchangeably. It doesn’t matter if they’re asking for an exception or exemption, it all means the same thing.”
What kind of health exemptions exist for the mandate? What does that process look like?
Essentially, any condition that your healthcare practitioner believes contraindicates taking a vaccine for COVID-19. It is incredibly broad and can range from someone who is currently suffering from COVID-19 to, perhaps, people in certain stages of pregnancy.
“It’s always going to be very individualized, and it’s always going to be between that person and their doctor. If an individual believes that they have a reason that they can’t get vaccinated for health reasons, then they should work with their doctor and they should get the paperwork in so that they can request an accommodation with the City.”
Can a medical exemption be filed based on mental health?
Possibly, but it would have to meet the same standards of any other medical exemption.
“Mental health illnesses are [as] equally valid as physical, but you’re going to have to have a doctor be able to articulate what the condition is, how it impacts, and why it’s contraindicated to not be taking the vaccine.”
What about religious exemptions?
Federal and State law has been incredibly clear that employers are not allowed to discriminate on the basis of religion regarding a person’s sincerely-held religious beliefs.
“Title VII in particular says employers cannot refuse to, quote, ‘Accommodate an employee’s sincerely held religious beliefs or practices, unless the accommodation would impose an undue hardship.’ ”
This is not to say that claiming a religious exemption is a catch-all.
“[E]mployers under Federal and State law do have the ability if they believe that an employee does not have a sincere religious belief, they can question that. They can request information from the employee to determine the validity of that.”
Does previously taking a vaccine that was required by the city, such as the hepatitis vaccine for certain classifications, remove your ability to request an exemption for the COVID-19 vaccine?
Like any of the exemptions, it will be highly individualized. Both an individual’s religious beliefs and health status are likely to flux over the course of one’s life. While you may have been able to be vaccinated due to the absence of a health condition that prevented it in the past, there’s nothing to say that such a condition could not have manifested itself in the interim.
What about my right to medical privacy? Isn't this a violation of HIPAA?
In brief, your employer asking you to prove your vaccination status is not a breach of HIPAA. The City has labeled themselves a hybrid-covered entity under HIPAA and are bound to maintain your information in compliance with HIPAA.
“[L]et’s say if you were dealing with a work injury and you were not able to lift more than 10 pounds. Your supervisor would need to know not to ask you to lift more than 10 pounds because they don’t want to […] do anything to irritate you. You have an accommodation for that particular need.”
What happens if a religious or medical exemption is filed with the city but is rejected?
There would be an interactive process, the details of which your union would attempt to address within our demand to bargain.
“You tried to comply, the City found either your paperwork wanting for some reason, or decided that you didn’t have a sincerely held religious belief, or that your medical documentation wasn’t accurate, or whatever the issue is, they have to still work with you through that process.”
An investigation would be held to determine whether or not the decision was issued in error.
When should we submit our exemptions?
As soon as possible.
“I don’t think there’s any magic, strategic reason to put it off a few more days. They have provided a few days so that folks can look at their different options and also I think so they can try to figure out if they need to apply for an exception or want to try to apply for an exception.”
Does the City have a deadline to respond to our exemption requests?
As of the writing of this document, this is unclear. We will address this in our demand to bargain.
What happens if we do claim a medical or religious exemption? Does that mean that the City will still separate us?
Once again, it will depend on the specific, individual nature of the request, the person, and their role with the City. If you have and submit a genuine good-faith request for a medical or religious exemption then the City should make every effort to accommodate that.
“I also truly believe that the City, if it did not work with an individual who had good support for a claim, that they did have a real sincere religious belief that they should not get this vaccine, I think that they would find themselves potentially with some kind of legal concerns.”
Are we expecting to see mass terminations as a result of this mandate?
We don’t know, but we believe that the City is serious in their demand. If the deadline passes and an employee has not begun the process of becoming vaccinated or submitted a request for an exemption we have no reason to believe that the City would not pursue separation.
“I think we would be doing you a disservice if we suggested that the City isn’t going to follow through and have consequences for the mandate that they have issued.”
Can I hold the City liable if I suffer from provable side effects as a result of the vaccine?
Since the vaccine is a condition of employment, demonstrated side effects that arose as a direct result of complying with the mandate may qualify for workers’ compensation.
“If you were to become ill due to the vaccine you could certainly file a workers’ compensation claim based on the fact that it’s based on your relationship with the City, […] however I don’t know if there’s anyone that can give you any accurate information to whether or not you would be successful because that’s just an unknown factor at this point.”
Is the City asking us to sign a waiver to remove them from liability from any ill effects that could occur as a result of taking these vaccines?
That has not been proposed.
Doesn't signing an informed consent letter remove the City from any liability from injuries incurred as a result of this mandate?
A letter of informed consent is a standard legal document specifically tied to wherever you receive your vaccine and has no direct relation to the City of Portland.
“Boilerplate waivers are in effect for almost every single medical procedure, but if you watch any kind of television you know that there are class action lawsuits that do happen on different kinds of medical procedures and devices, and those kinds of waivers are not always effective.”
Since the shots take time to become fully effective, how is that going to work with the timeline of the City's mandate?
This will be bargained and factored into the timeline that the City originally proposed.
“If a person is, for example, not able to get vaccinated right away for some reason […] their union is going to be actively working with the City to ensure that they can do what they need to do to be in compliance, when they can get into compliance. Those are the kinds of reasonable, individualized accommodations that can happen.”
Will the City be verifying vaccination cards?
Perhaps. They certainly have the right to.
“[A]nybody who submits a fraudulent document to their employer is running the risk of potential termination for submitting such a document, so I wouldn’t encourage that.”
Where do these mandates end? Could the City tell us we have to drive a certain kind of car, for instance?
Unlikely, since few things have quite the degree of historic case law to back it up as vaccine mandates do.
“[A]t least as far as I’m aware there’s no precedent that’s 115 plus years old that gives them the grounds to do that.”
If I’m in a position that requires being at the worksite and I request an exemption, does that necessarily mean that I’m going to be laid off?
No, unless the City is unable to find ANY reasonable accommodation for you.
“No, the reasonable accommodation includes other considerations, and it really depends on the particular worksite, your condition, everything. Perhaps it’s weekly COVID testing, perhaps it’s doing something where you have no contact. We just don’t know what it is so I wouldn’t assume that there isn’t an accommodation.”
If we are terminated as a result of the mandate will we still be paid out our accrued vacation time?
Yes. You’ve already earned it, it’s yours.
Is the City just using this mandate as an excuse to separate employees?
This has been a concern for the union, which is why we are going to fight to ensure that no one is unduly separated. If you submitted all of the proper paperwork but still face separation…
“…the City is going to be on very thin ice if they try to oppose that.”
Can we receive unemployment if we are separated under this mandate?
This is still somewhat unclear, but the State (who operates unemployment) has indicated that they may consider separation in this manner to be a separation ‘with cause’ as it was due to a direct violation of directives and therefore ineligible for unemployment were the City to contest it.
“I would say that if you were someone who had a, let’s say medical exemption that the City could not accommodate it might be looked at differently because at that point you were being laid off because it was an undue burden to be able to figure out how to keep you employed rather than a direct violation of the mandate.”
What do I do if I still have questions?
Contact your shop steward or labor reps!