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Oregon鈥檚 state and local vaccine mandates for parties contracting with state and local agencies have 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 Aug. 12, Gov. Kate Brown signed Executive Order No. 21-29. The order applies to any 鈥渨orker,鈥� which the executive order defines as a person who 鈥渋s engaged to provide goods or services to the executive branch through any formal or informal agreement.鈥�

It prohibits a worker from engaging in work on an 鈥渆xecutive branch worksite鈥� after Oct. 18, 2021, if the worker has not been fully vaccinated against COVID-19 and has provided proof thereof.

The mandate only applies to workers who are required by the agreement to perform work 鈥渋n person and on site at an executive branch worksite, regardless of frequency, whether other persons are present, or any contingent nature of that requirement.鈥�

The mandate also applies 鈥減rice agreement鈥� contracts, which are those for supplying workers to perform services (such as temporary staffing or janitorial services) at executive branch worksites. The mandate further applies to workers performing work in health care 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: 鈥渆xecutive branch worksite,鈥� leaving it open to interpretation by contracting agencies. For example, guidance from the Oregon Department of Administrative Services (DAS) states that 鈥渆xecutive branch worksite鈥� means 鈥渁ny indoor premises controlled or operated by an executive branch agency, where a worker performs services in person for longer than 15 minutes (鈥榗lose contact鈥� as defined by the CDC).鈥�

DAS guidance provides that for construction projects, public works projects, or maintenance project sites, the vaccine mandate does not apply to a 鈥渟ite 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.鈥�

Generally, individuals making deliveries to an executive branch website do not qualify as 鈥渨orkers鈥� pursuant to the executive order. Further, in the case of multi-tenant buildings, the mandate applies only to the 鈥渟paces and services under the control of the agency.鈥�

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 鈥渆xecutive branch worksite鈥� 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 鈥渆xecutive branch worksite鈥� 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鈥檚 interpretation of the executive order. Contractors will also need to determine whether the federal vaccine mandate 鈥� requiring parties that contract with the federal government to be fully vaccinated by Jan. 4, 2022 鈥� 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鈥檚 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鈥檚 use of unvaccinated workers if the work is 鈥渦rgent.鈥�

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鈥檚 vaccine mandate became effective Oct. 18, and covers contractors that 鈥渉ave in-person contact with Multnomah County clients, whether at Multnomah County facilities or other sites鈥� and those working in health care settings and schools.

The city of Portland mandate requires, as of Jan. 3, 2022, that 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 鈥渁t a minimum鈥� 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, because the consequences for failing to meet the requirements of the vaccine mandate could be significant, including contract termination and likely liability for the contracting agency鈥檚 excess reprocurement and other costs.

Brent Carpenter is a Jordan Ramis PC shareholder. He focuses his practice on construction law. Contact him at 503-598-5524 or [email protected].

Robyn Stein is a Jordan Ramis PC attorney. She focuses her practice on state and federal court appeals and litigation for clients regarding general business issues. Contact her at 503-598-5535 or [email protected].

Note: This article is intended to provide readers with general information and not legal advice. For specific situations, consult with competent counsel.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither of the authors nor the 91视频 guarantees the accuracy or completeness of any information published herein.