Although national long-term care and healthcare groups are backing mandatory COVID-19 vaccination for workers, a 32-year-old law might prevent some operators in one state from moving forward on that front. Meanwhile, another state is mandating testing for all unvaccinated long-term care workers.

Oregon appears to be the only state in the country that explicitly prohibits healthcare organizations from mandating vaccinations for workers, according to The Oregonian. The law, passed in 1989, was part of a bill focused on ensuring that healthcare workers were informed about exposure to communicable diseases as part of their work.

The law only applies to healthcare workers, prohibiting employers from mandating vaccinations for such workers unless other state or federal laws or regulations require a vaccine. 

Under Oregon law, assisted living communities are not considered healthcare facilities or licensed healthcare providers. Senior living associations in the state, however, said the law prohibits senior living operators from requiring a vaccine of licensed staff members, including certified nurse assistants, nurses and administrators.

“Oregon law specifically excludes assisted living communities from being healthcare facilities, and assisted living communities are also unlikely to be considered licensed healthcare providers,” Gabriela Sanchez, co-chair of the senior living and long-term care group at Lane Powell, a Portland, OR, law firm, wrote in a legal opinion to LeadingAge Oregon shared with McKnight’s Senior Living. “Of particular relevance to our sector is that any licensed nurse — this includes registered nurses, nurse practitioners, licensed practical nurses, certified nurse assistants — and licensed administrators or executive directors in assisted living are considered ‘workers’ under the statute and are exempt from mandatory vaccinations.”

Rosie Ward, senior vice president of strategy for the Oregon Health Care Association, told McKnight’s Senior Living that licensed caregivers, such as CNAs, nurses and administrators in assisted living communities, are affected by current Oregon law prohibiting providers from requiring vaccines as a condition of employment.

But the Lane Powell legal opinion also stated that operators may be able to mandate vaccines for non-licensed staff members.

Testing the unvaccinated

Meanwhile, in Colorado, the Colorado Department of Public Health and Environment released updated guidance on Friday requiring residential care facilities to perform rapid testing for COVID-19 of unvaccinated staff members daily prior to each shift. Unvaccinated residents who leave communities overnight also must be tested upon their return.

The mandate, implemented to address the emergence of the delta variant, applies to assisted living community, intermediate care, group home and skilled nursing facility residents.

Colorado Health Care Association / Center for Assisted Living President and CEO Doug Farmer told McKnight’s Senior Living that the expectation is that the state will provide testing kits for communities, but providers will have to absorb time and costs associated with administering the tests.

The announcement was not a surprise, he said, adding that the state pulled the trigger on a statewide testing directive after finding that 80% of new COVID-19 cases in the state were caused by the delta variant. Prior to that, only counties that reported significant surges in cases were under special enhanced testing regulations.

“I think it’s just an unfortunate reality of where we’re at with the variant, and the expectation that we’ll continue to see some form of need arising over the next couple of years,” Farmer said about testing. “I’m hopeful, as we get more and more vaccination, it will have less of an impact on providers.”

As of July 20, Farmer said, 94% of residents in Colorado’s assisted living communities were vaccinated, and 72% of staff members were fully vaccinated.

In addition to testing, communities with one or more positive cases will stop indoor visitation, and unvaccinated staff members will be required to add eye protection when outbreak testing is initiated.

Randy Kuykendall, CDPHE director of health facilities and EMS division, told CBSN Denver that the added infection prevention measures “will help us combat variants of concern and rising cases when they occur.”