Oregon Health Authority Issues New Vaccine Guidance—‘Interim Guidance for Fully Vaccinated Individuals’

On May 18, 2021, the Oregon Health Authority (OHA) issued a new guidance titled, “Interim Guidance for Fully Vaccinated Individuals,” adjusting the applicability and enforcement of current state guidance for fully vaccinated individuals. Here are the key provisions of the new interim guidance.

Applicability

The interim guidance applies to “[f]ully vaccinated individuals in Oregon regarding requirements to wear masks, face coverings and face shields and physically distance.” Individuals are considered fully vaccinated when they have “received both doses of a two-dose COVID-19 vaccine or one dose of a single-dose vaccine and at least 14 days have passed since the individual’s final dose of COVID-19 vaccine.” The guidance also applies to “[p]laces of employment, businesses, faith institutions, and other settings subject to current state guidance.”

Mask and Physical Distancing Exceptions for Fully-Vaccinated Individuals

The guidance states that “individuals who are fully vaccinated with proof of vaccination status are not required to wear a mask … or maintain physical distancing except” in certain settings. According to the guidance, ‘“[p]roof of vaccination status’ means documentation provided by a tribal, federal, state or local government, or a health care provider, that includes an individual’s name, date of birth, type of COVID-19 vaccination given, date or dates given, … and the name/location of the health care provider or site where the vaccine was administered.”

The settings where fully-vaccinated individuals are still required to wear a mask and maintain physical distancing are:

• health care;
• “adult jails and correctional facilities”;
• “shelters and transitional housing”;
• “K-12 schools. (Fully vaccinated individuals must comply with Ready School, Safe Learners (RSSL) guidance face covering requirements)”;
• transportation and transportation hubs such as airports and bus stations; and
• “other settings where the owner or operator continues to apply and enforce the mask, face covering and face shield guidance, and physical distancing requirements in state COVID-19 guidance.”

Based on the last exception, owners and operators of any premises may still require fully-vaccinated individuals to wear masks and abide by physical distancing guidance if the owner or operator continues to elect to enforce existing state guidance on mask mandates and physical distancing.

Employer, Business, and Faith Institution Requirements

All employers, businesses, and faith institutions are required to continue to apply and enforce mask and physical distancing guidance to all individuals—including the fully vaccinated—unless they:

• Have “a policy for checking for proof of vaccination status of individuals; and
• Request[] proof of vaccination status from each individual; and
• Review[] each individual’s proof of vaccination prior to entry or admission.”

If an individual declines to provide proof of vaccination status, the business, employer, or faith institution must continue to apply and enforce the face mask and physical distancing guidance.

Interim Guidance’s Impact on Oregon OSHA’s Permanent COVID-19 Rule

On May 4, 2021, the Oregon Occupational Safety and Health Administration (Oregon OSHA) the state plan responsible for overseeing workplace safety and health in the state of Oregon, released its permanent COVID-19 rule. According to Oregon OSHA the permanent rule is currently in effect and will be repealed “once it is no longer necessary.” The basic requirements are largely consistent with those that have been in place since Oregon OSHA adopted a temporary workplace rule in November of 2020.

Businesses and employers must still comply with the rule’s physical distancing and mask, face covering, and face shield requirements for the workplace unless they have a policy for checking proof of vaccination status and request or review proof of vaccination status of each individual consistent with the OHA’s interim guidance. As mentioned above, employers and businesses may also elect to continue enforcing the Oregon OSHA permanent rule at their discretion even for fully-vaccinated individuals.

Oregon OSHA is expected to release further guidance in light of the OHA’s interim guidance. In the meantime, employers may want to be aware of the following key changes implemented in the permanent rule that depart from the temporary rule:

Employees Transported in Vehicles

“Effective June 3, 2021, when employees are transported in a vehicle for work purposes, regardless of the travel distance or duration involved, employers must use the hierarchy of hazard controls to minimize employee exposures by either … [c]onsidering to the degree practical, eliminating the need for employees to share work vehicles and arranging for alternative means for employees to travel to work sites;” or take protective measures such as:

• requiring “all occupants in the vehicle” to “wear a mask, face covering, or face shield unless all employees are wearing respirators in accordance with the Respiratory Protection Standard (29 CFR 1910.134)”;
• increasing outside air by taking steps such as opening windows or refraining from recirculating cabin air; and
• maximizing “[t]he separation of individuals in the vehicle … to the degree possible.”

The requirements apply only when the occupants of the vehicle are not related or do not live together.

Cleaning and Sanitation

“[C]leaning must occur at least once every 24 hours when the area, equipment, or surface in question is in use,” unless more specific rules to the location apply.

Post-Exposure Cleaning and Sanitation

If an employer becomes aware “between 24 and 72 hours after” a person who is positive for COVID-19 “was last present in the [work] space, only cleaning is required, not sanitation. If the employer learns of the exposure more than 72 hours after the individual was last present in the space, no exceptional cleaning or sanitation is required.” More specific requirements apply to healthcare settings.

Employers With HVAC Systems

“By June 3, 2021, all employers with more than 10 employees statewide and an existing HVAC system must certify in writing that they are operating that system in accordance with the rule, to the best of their knowledge.” Details are set out in the rule, and employers can use sample certifications provided by Oregon OSHA.

Starting June 3, 2021, “[o]n a quarterly basis,” all HVAC filters must be “maintained and replaced as necessary,” and “[a]ll intake ports that provide outside air to the HVAC system [must be] cleaned, maintained, and cleared of any debris.”

Employee Exposure Notifications

Written employee exposure notifications “may be subject to” the provisions of 29 C.F.R. § 1910.1020. This section states that employee medical records must “be preserved and maintained for at least the duration of employment plus thirty (30) years.”

Quarantined Employees

Beginning June 3, 2021, employees in quarantine or isolation “must be advised in writing of the right to return … and should be provided any relevant information about the employer’s paid time off, sick leave, or any other available benefits in accordance with local, state, or federal law.”

Industry-Specific Guidelines

The guidance includes an appendix with mandatory guidelines for 13 industries—down from 19 in the temporary COVID-19 rule issued in December 2020. The following industry-specific guidelines are no longer in force:

• “Indoor and Outdoor Entertainment Facilities”
• “Outdoor/Indoor Markets”
• “Outdoor Recreation Organizations”
• “Licensed Swimming Pools, Licensed Spa Pools, and Sports Courts Mandatory Workplace Guidance”
• “Institutions of Higher Education (Public or Private)”
• “Collegiate, Semi-Professional and Minor League Sports” (but the “Professional, Division 1, Pac-12, West Coast Conference and Big Sky Conference Sports” guidance is still in effect).

Retail Guidelines

Oregon OSHA added additional requirements to the guidelines for retail stores. These requirements include:

• “[E]mployers operating retail stores must determine maximum occupancy and thereby limit the number of customers in the retail store as necessary to allow workers to maintain such distancing.” No specific guidelines or percentages are stated in the guidance.
• Employers must post signage that “encourage[s] physical distancing”; provides “mask, face covering, or face shield requirements”; and lists the symptoms of COVID-19, and “ask[s] employees and visitors with symptoms to stay home.”

Key Takeaways

Employers may want to take several steps to ensure compliance with state guidance and applicable laws relating to COVID-19 and the workplace, including:

Mask and Physical Distancing Mandates: Continue to apply and enforce Oregon’s face mask mandates and physical distancing guidance to all individuals—including the fully vaccinated—unless an employer: 1) has a policy for checking for proof of vaccination status of individuals, 2) requests proof of vaccination status of each individual, and 3) reviews each individual’s proof of vaccination prior to entry or admission.

Entry to Premises: Ensure that employees and visitors who are unvaccinated or decline to provide vaccination status are still allowed entry to the premises so long as they comply with face  mask mandates and physical distancing guidance.

Oregon OSHA’s Permanent Rule: Continue to apply and enforce the other provisions of Oregon OSHA’s permanent rule that remain in effect.

Accommodation Requests: Address requests for accommodations for employees and individuals who are unable to get vaccinated due to a disability or religious belief while keeping in mind that employees with disabilities or religious beliefs are protected from discrimination and retaliation.

Employee Concerns and Complaints: Address employee concerns and complaints relating to these rules while keeping in mind that employees who oppose any practice forbidden under the Oregon Safe Employment Act and the COVID-19 permanent rule may be protected from discrimination and retaliation.

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.