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The Employment Department acting director says it hinges on a 'reasonable expectation' by an employer.

PMG PHOTO: ZANE SPARLING - Paperwork from the Oregon Employment Department is shown here.Oregon workers who choose not to be vaccinated against the COVID-19 coronavirus, even if their employers require it, could be deemed ineligible for state unemployment benefits if they lose their jobs.

The acting director of the Oregon Employment Department says there are exceptions under federal law — notably a medical disability or a deeply held religious belief — but it boils down to whether an employer has a "reasonable expectation" that vaccination is necessary for a business to operate.

"In broad strokes, requiring someone to be vaccinated during the midst of a worldwide pandemic is a reasonable policy," Gerstenfeld told reporters Aug. 25 during a conference call. "So if somebody doesn't follow that policy and they don't have a good reason, it very well could result in them not being eligible for benefits."

While states pay unemployment benefits, they are subject to state and federal laws and the guidance of the U.S. Department of Labor.

"I want to be clear it isn't the Employment Department making a value judgment as to whether it is a good or bad policy," Gerstenfeld said. "We give employers quite a bit of leeway to run their business the way they want. But when looking at benefit eligibility, it's really about whether the standard they set was a reasonable one."

Oregon's recent surge in infections and hospitalizations due to the delta variant has prompted Gov. Kate Brown to order vaccinations for state workers, plus teachers and other public school staff. She also issued a similar order for health care workers — notably after mandates from Oregon Health & Science University, Kaiser Permanente, PeaceHealth and Legacy Health — and removed an initial alternative for employees to undergo weekly testing instead of vaccination.

A 1989 law raises questions about whether vaccinations can be mandated for health care providers and workers and public safety employees. It says nothing about the authority of other employers to do so.

Gerstenfeld said federal law requires his agency to consider each case by itself, despite the general principle of whether a mandate by an employer is a "reasonable expectation."

"I think the key takeaways are that we have to look at each situation individually," he said. "There are some categories under which people can get benefits even if they don't get vaccinated when their employer tells them they have to. But those are pretty narrow."

End of federal benefits

Gerstenfeld spoke as special federal unemployment benefits end Saturday, Sept. 4.

An estimated net of 81,000 Oregonians stand to lose those benefits — 36,000 under a 2020 program for self-employed and gig workers, and 56,000 under a program that picks up after recipients exhaust their normal 26 weeks of state benefits. But Gerstenfeld said 11,000 people in the second category could be eligible to transition from federal to state benefits, which come from the trust fund that employers pay into. That's because many of them had to start new claims after their initial one-year claims from 2020 expired, and that initial money came from the federal government — until Sept. 4.

Along with the reinstatement of active work-search requirements, which the Employment Department has phased in during the summer, people who file new claims for unemployment benefits starting Sept. 5 will face a waiting week that will count against their claim. But they won't be paid for the initial week, and will have to await benefits in the second week.

Brown ordered a suspension of the waiting week at the outset of the pandemic in spring 2020. That action enabled laid-off workers to get paid for the first week of their claims, although it took the Employment Department months to catch up on the backlog.

Gerstenfeld said that even after Brown's initial order lapsed, payments for the waiting week continued as long as the special federal unemployment benefits were in effect.

"It was based on a finding by the Employment Department that this would help Oregonians by providing additional federal resources to people in need," he said. "With those federal pandemic relief programs ending, Oregon law now requires that the applicable waiting week resumes."

But he said people should continue to file claims the week they are first eligible for benefits.

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