Oregon Lifts Most Statewide Mask, Distancing, and Capacity Restrictions: What Employers Need to Know

Effective June 30, 2021, Oregon Governor Kate Brown, the Oregon Health Authority (OHA), and the Oregon Occupational Safety and Health Division (Oregon OSHA) lifted most statewide mask and physical distancing restrictions related to COVID-19, with limited exceptions. Mask requirements remain in place in some specialized settings, including healthcare, emergency medical services, public transit, transportation hubs, and correctional facilities. In addition, businesses may continue to require individuals to wear masks, face coverings, or face shields, and physically distance regardless of vaccination status. Individuals may continue to wear masks, face coverings, or face shields, even when not required, if they choose to do so.

Statewide Mask, Distancing, and Capacity Restrictions

Governor Brown’s Executive Order No. 21-15 took effect on June 30, 2021, and rescinded the statewide mask mandate, physical distancing restrictions, and capacity limitations, except in certain specialized settings pursuant to federal and state guidance. Despite lifting most restrictions, the executive order continues the state of public health emergency until December 31, 2021, to allow access to federal support and funding, and flexibility during the reopening and recovery process.

Based on the executive order, on June 30, 2021, OHA issued updated mask guidance, “Public Health Recommendations: Wearing Masks, Face Coverings and Face Shields and Physically Distancing in Public Settings.” The updated guidance removes prior mask and distancing requirements (including those related to verification of vaccination status), except in certain settings including healthcare, adult jails and correctional facilities, youth detention and correctional facilities, public transportation, transportation hubs, certain workplaces as required by Oregon OSHA, and businesses that continue to require masks and distancing. However, even where not required, OHA “strongly recommends” that individuals who have not been vaccinated or “who are at risk for severe COVID-19 disease continue to wear a mask or face covering and maintain physical distancing of at least six (6) feet from other individuals when in crowded areas and in large gatherings of individuals.” The guidance also states that OHA does not recommend that individuals wear only a face shield rather than a mask or face covering, unless it is not feasible to do so (such as due to a medical condition or when interacting with people who need to see mouth and tongue motions to communicate).

Changes to Oregon OSHA COVID-19 Workplace Rule

Oregon OSHA followed suit and, on June 30, 2021, released “Changes to Rules Addressing the COVID-19 Public Health Emergency in All Oregon Workplaces,” which took effect immediately. The changes eliminate provisions of the prior rules that required all employers to ensure that employees and other individuals in the workplace complied with mask and physical distancing requirements. Pursuant to the changes, Oregon OSHA “no longer requires [most] employers to implement physical distancing” or “ensure that individuals at the workplace wear a mask, face covering, or face shield as source control.” However, the Oregon OSHA rules continue to impose certain mask, distancing, and other requirements on employers in the healthcare, public transit, emergency medical services (including first responders, firefighters, emergency medical services, and non-emergency medical transport), and veterinary settings. The rules also continue to require employers to allow employees who choose to continue wearing a mask, face covering, or face shield, even when not required, to do so.

The changes to the Oregon OSHA rules further eliminated hazard control procedures for shared vehicle transportation and additional restrictions that previously applied to several other industries. Mandatory appendices for certain industries have been reduced from 13 to 3. The only industries that still have a mandatory appendix with additional requirements are transit agencies, veterinary care, and emergency medical services. In place of the requirements eliminated by these changes to the rules, Oregon OSHA now encourages “[e]mployers who wish to evaluate their workplaces to determine how they can keep their employees safe and healthy” to contact Oregon OSHA Consultation Services.

Although the statewide mask and distancing mandates are no longer in effect, the updated rules and guidance allow businesses to voluntarily continue requiring masks and physical distancing regardless of vaccination status if they choose to do so, subject to the same preexisting accommodation obligations for individuals who cannot wear a mask due to a disability. According to Oregon OSHA, employers that continue to require masks or distancing must continue to post signage regarding their requirements.

Further, the updated rules and guidance do not prohibit local governments in Oregon from implementing their own continuing mask or distancing requirements. At this time, it does not appear that any counties or cities in Oregon will impose ongoing local mask or distancing mandates, but local requirements could change.

Employers may want to keep in mind that other requirements of the Oregon OSHA rules continue to remain in effect, including those concerning:

• cleaning and sanitation;
• routine ventilation maintenance and evaluation;
• exposure risk assessments;
• infection control plans;
• employee information and training;
• COVID-19 infection notification process;
• COVID-19 testing;
• medical removal; and
• other additional requirements applicable to “workplaces at exceptional risk” as well as employers in healthcare, transit, emergency medical services, and veterinary industries.

Key Takeaways for Employers

As a result of these changes, there are a number of new developments that Oregon employers may want to keep in mind. Here is a summary of the key points:

• Most Oregon employers (except in certain settings as outlined above) are no longer required, but may elect, to enforce mask and/or distancing requirements in the workplace.
• Oregon employers are no longer required to have a policy regarding or verifying vaccination status before allowing an individual to go without a mask or physical distancing.
• Oregon employers that elect to continue requiring masks or distancing must continue to post signs regarding those requirements.
• Oregon employers that elect to continue requiring masks or distancing must continue to consider accommodation requests by individuals who cannot wear a mask due to a disability in accordance with state and federal law.
• Oregon employers must continue to comply with and enforce all other applicable provisions of the Oregon OSHA rules addressing COVID-19 that remain in effect.
• Oregon employers should continue to monitor local and state laws and guidance for potential changes.
• Pursuant to the Oregon Safe Employment Act, which protects employees from discrimination and retaliation because they have engaged in certain good faith protected activities related to workplace safety, Oregon employers may not discriminate or retaliate against employees for reporting safety-related concerns or exercising rights under the Oregon OSHA rules addressing COVID-19.

For an overview of the latest changes to Oregon employment law and workplace guidance, including developments related to the COVID-19 pandemic, please join us for our upcoming webinar, “Oregon Legislative Update: Employment Law and the COVID-19 Pandemic,” which will take place on Wednesday, July 14, 2021, from 11:00 a.m. to 12:00 noon Pacific daylight time. The speakers will discuss recent legislative changes to Oregon’s discrimination, leave, and noncompete laws, as well as other workplace laws. The speakers will also cover the latest OHA and Oregon OSHA workplace guidance relating to COVID-19. Register here.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.