Employer FAQ on Oregon’s Revised Mask and Physical Distancing Guidance for Fully Vaccinated Individuals

On May 13, 2021, the CDC significantly relaxed its mask and physical distancing guidance for those individuals who are fully vaccinated against the coronavirus (COVID-19). In response to the new guidance from the CDC, on May l8, 2021, the Oregon Health Authority issued its own Interim Guidance for Fully Vaccinated Individuals and Statewide Reopening Guidance – Face coverings, Face Coverings, Face Shields.

On May 19, 2021, Oregon Occupational Safety and Health Administration (“OSHA”) issued its Statement Regarding Vaccination Status in Relation to Oregon’s Face Covering and Physical Distancing Requirements. Under the new Interim Guidance from the Oregon Health Authority and the new Oregon OSHA guidance, employers may allow fully vaccinated individuals to work in the employer’s workplace without masks, face coverings, or face shields and without physical distancing if certain requirements are met.

Who is a “Fully Vaccinated Individual”?

Under the Interim Guidance for Fully Vaccinated Individuals, a “fully vaccinated individual” is an individual who has received both doses of a two-dose COVID-19 vaccine (Pfizer BioNTech or Moderna vaccine) or one dose of a single-dose vaccine (Johnson & Johnson vaccine) and at least 14 days have passed since the individual received the final dose of the vaccine.

Do employers still need to enforce face covering and physical distancing in the workplace?

The Oregon Health Authority’s interim guidance and new Oregon OSHA guidance give Oregon employers a choice. An employer can continue to enforce mask and physical distancing requirements for all employees. Alternatively, the employer does not need to enforce mask and physical distancing requirements for those employees who are fully vaccinated if the employer has a policy for verifying proof of vaccination status and has requested and reviewed the employee’s proof of vaccination status. The employer must still enforce mask and physical distancing requirements for employees who are not fully vaccinated or who decline to show proof of vaccination status.

If I want to allow fully vaccinated employees to work without masks or physical distancing, what do I need to do?

Employers who want to allow fully vaccinated employees to work without masks and without physical distancing (1) must have a policy for verifying vaccination status for its employees; (2) must request proof of vaccination status from employees; and, (3) must review each employee’s proof of vaccination status before allowing the employee to work without a mask or other face covering and without physical distancing in the employer’s workplace. It is a best practice to have the verification policy in writing and made available to all employees.

If an employee provides proof that the employee is fully vaccinated, what happens?

If an employee provides proof of full vaccination status, then the employer does not need to enforce mask or physical distancing requirements as to that employee. The employee can work at the employer’s workplace without wearing a mask or other face covering and without physical distancing. However, if the employee goes to another business as part of the employee’s job (such as going to another business for a meeting or to purchase supplies), the employee must adhere to any mask or physical distancing requirements required by the other business.

What about employees who are not fully vaccinated or who do not provide proof of vaccination status?

Employers are required to enforce Oregon’s mask and physical distancing requirements for those employees who are not fully vaccinated or who do not provide proof of vaccination status.

What if an employee verbally states that the employee is fully vaccinated but refuses to show proof of vaccination status?

The Oregon Health Authority’s guidance does not allow for an “honor system.” If an employee declines or refuses to provide proof of vaccination status, then the employer must enforce Oregon’s face covering and physical distancing requirements as to that employee.

Does the employer really need a policy for vaccine verification?

Yes. The Oregon Health Authority’s interim guidance is clear that the employer must have a policy for checking proof of vaccination status. It is a best practice to have a written policy. If the employer does not have a policy to check proof of vaccination status, then it must continue to require masks or other face coverings and physical distancing in the workplace.

This seems like a lot. What if I do not want to spend time and resources checking employees’ vaccination status?

Employers have a choice. Employers can choose to continue to enforce mask and physical distancing requirements for all employees.

What about customers, visitors, and guests in the workplace?

The same guidance applies to customers, visitors, guests, and other individuals who come into the workplace. The business (1) must have a policy for verifying vaccination status for its customers, visitors, guests, or any other individuals who come into the business; (2) must request proof of vaccination status from such individuals; and, (3) must review the individual’s proof of vaccination status before allowing the individual into the business.

What if I am not comfortable asking my customers, visitors, or guests for proof of vaccination status?

If the business is not comfortable asking for vaccination status, does not have resources to check vaccination status, or is not able or willing to check vaccination status for any other reason, then the business must enforce Oregon’s mask and physical distancing guidelines for its customers, visitors, guests, and anyone else that comes into the business.

Oregon’s rules seem stricter than the new guidance from the CDC. Can I choose to follow the CDC’s guidance?

The CDC’s guidance does not supplant Oregon’s authority to enact its own rules to protect public health and worker safety. Businesses must comply with Oregon’s rules even if they are stricter than the guidance adopted by the CDC.

As with all your Employment Law matters, seek guidance from an experienced Employment Law attorney. Buckley Law’s Employment Group will continue to monitor Washington and Oregon’s local and state laws as well as the federal employment laws as we work our way through this crisis. If you have questions regarding Employment Law do not hesitate to contact Buckley Law.  We are here to partner with you. If you have questions or need legal assistance on employment law, please contact Jillian A. Pollock at 503-620-8900 or visit our website at www.buckley-law.com.