This article originally published in the November 19, 2021 edition of the Daily Journal of Commerce Oregon.
Oregon’s state and local vaccine mandates for those contracting with State and local agencies has been in effect for about a month. Many contractors have likely already formed a strategy for complying with the mandates, the simplest of which is to err on the side of caution and require that employees be vaccinated. However, such a policy is not always feasible, and in the event that a contractor employs unvaccinated individuals, it is important to know the parameters of the vaccine mandates.
As contractors are undoubtedly aware, on August 12, 2021, Governor Kate Brown signed Executive Order No. 21-29. The order applies to any “Worker,” which the Executive Order defines as a person who “is engaged to provide goods or services to the Executive Branch.”
It prohibits a Worker from engaging in work on an “Executive Branch worksite” after October 18, 2021, if the Worker has not been fully vaccinated against COVID-19 and has provided proof thereof.
The Executive Order defines “Worker” as any individual who “is engaged to provide goods or services to the Executive Branch through any formal or informal agreement.”
The mandate only applies to Workers who are required by the agreement to perform work “in person and on site at an Executive Branch worksite, regardless of frequency, whether other persons are present, or any contingent nature of that requirement.”
The mandate also applies “Price Agreement” contracts, which are those for supplying Workers to perform services at Executive Branch worksites, such as temporary staffing or janitorial services. The mandate further applies to Workers performing work in healthcare and/or school settings. Exceptions are permitted for any individual unable to be vaccinated due to disability, qualifying medical condition, or a sincerely held religious belief.
The Executive Order does not define a key term: “Executive Branch worksite,” leaving that term open to interpretation by contracting agencies. For example, guidance from the Oregon Department of Administrative Services (“DAS”) states that “Executive Branch worksite” means “any indoor premises controlled or operated by an Executive Branch agency, where a Worker performs services in person for longer than 15 minutes (‘close contact’ as defined by the CDC).” DAS guidance provides that for construction projects, public works projects, or maintenance project sites, the vaccine mandate does not apply to a “site that is wholly operated by the contractor and not the Executive Branch worksite, such as vacant buildings and self-contained spaces; or if the work takes place in unoccupied Executive Branch worksite space, such as mechanical rooms; and the Worker does not interact with the occupied portion of the building for more than 15 minutes.”
Generally, individuals making deliveries to an Executive Branch website do not qualify as “Workers” pursuant to the Executive Order. Further, in the case of multi-tenant buildings, the mandate only applies to the “spaces and services under the control of the agency.”
Although not specified in the Executive Order, DAS has indicated that the mandate applies to subcontractors supplying Workers through a prime contractor.
For other contracting agencies, unless they have provided guidance defining “Executive Branch worksite” or otherwise addressing the issue, contractors should assume that if their employees are performing work in person and on-site for the Executive Branch, even if as a subcontractor, that they are doing so at an “Executive Branch worksite” and are subject to the mandate as summarized above. However, the Executive Order provides that a contracting agency may implement more stringent requirements than provided in the Executive Order to meet the needs of the contracting agency. Therefore, contractors should consult the individual state agency with which they are contracting for guidance regarding the agency’s interpretation of the Executive Order. Contractors will also need to determine whether the federal vaccine mandate—which requires those who contract with the federal government be fully vaccinated by January 4, 2022—might be applicable to the contract in the event that the project is receiving federal funds.
As stated above, contractors are required to provide documentation of compliance with the mandate. DAS guidance provides that Contract Administrators will provide the contractor with a vaccination compliance form to complete and return to demonstrate compliance.
In the event of Worker noncompliance or a contractor’s refusal to submit the required form, a contracting agency may take actions to ensure compliance with the Executive Order, such as denying the contractor access to the Executive Branch worksite and/or terminating the contract. If a contractor is unable to obtain Workers who are in compliance with the Executive Order, heads of contracting agencies have the authority to approve a contractor’s use of unvaccinated Workers if the work is “urgent.”
In addition to the State mandate, local governments, such as Multnomah County and the City of Portland, have implemented their own vaccine mandates. Like the State mandate, Multnomah County’s vaccine mandate became effective October 18, 2021, and covers contractors who “have in-person contact with Multnomah County clients, whether at Multnomah County facilities or other sites” and those working in healthcare settings and schools. The City of Portland mandate requires that, as of January 3, 2022, all vendors, consultants, and contractors performing work on a City worksite for longer than 15 minutes be fully vaccinated or have obtained a medical or religious exception or face “at a minimum” denial of access to City facilities.
As the above demonstrates, contractors performing work indoors for more than 15 minutes at an agency-controlled worksite should assume that their employees will need to be fully vaccinated. While there are some gray areas, discussed above, contractors should tread carefully in them, and avoid them altogether if possible, as the consequences for failing to meet the requirements of the vaccine mandate could be significant, including contract termination and likely being liable for the contracting agency’s excess reprocurement and other costs.
Brent Carpenter is a shareholder at Jordan Ramis and focuses his practice on construction law. Contact him at (503) 598-5524 or firstname.lastname@example.org.
Robyn Stein is an attorney at Jordan Ramis, focusing her practice on state and federal court appeals and litigation for clients on general business issues, as well as in the areas of labor and employment and bankruptcy and creditors’ rights. She can be reached at (503) 598-5535 or email@example.com.