May 18, 2021

The End of Masking For Employers and Business?

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By Peter S. Hicks, Shareholder

Following the CDC’s determination that masking is no longer required for fully vaccinated individuals, the Oregon Health Authority (OHA) issued its latest Interim Guidance for masks, face coverings, and face shields on May 18, 2021. In short, OHA further revised its guidance to now indicate that masks, face coverings, and face shields may no longer be required for indoor activities, including worksites. However, OHA places the burden on employers and businesses to verify that employees and customers are in fact fully vaccinated before allowing individuals without masks or face coverings. 

OHA’s Interim Guidance provides that the existing mask requirements continue to apply unless businesses and employers:

  • 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 a business or employer implements and applies each of these steps, individuals with proof of vaccination can go without a mask, face covering, or face shield and do not need to observe physical distancing requirements. Recognizing that the steps listed above may be too difficult for some businesses and employers to effectively implement, or that some businesses or employers do not want to take the steps necessary to verify vaccination status, OHA also permits such businesses and employers to continue enforcing the existing mask requirements for all employees or customers.

So what does this all mean? First, masks are still required unless employers and businesses take the steps set out above. That means if you want to allow individuals to not wear masks on your premises you must: (1) have a policy; (2) ask for proof of vaccination status; and (3) actually check any documents produced. If you do not take these steps, do not allow individuals to enter your worksite or location without a mask or face covering. Proof of vaccination status is defined as a document (or photograph of a document) including the individual's name, date of birth, type of vaccine received, dates of vaccinations, and the name and location of the medical provider or site where the vaccine was administered. “Fully Vaccinated” is defined as an individual that has received both doses of a two-shot vaccine or one dose of a single-shot vaccine and at least 14 days have passed since the final dose of the vaccine.

Second, OHA’s Interim Guidance does not require an employer or business to permit individuals to enter their premise without a mask or face covering. If you conclude this is all too much or too difficult to administer, or you do not want to check vaccination status, you can continue requiring masks or face coverings. In addition, if an individual refuses to provide proof of vaccination, you can deny entry. Employers and businesses can legally request proof of vaccination status and such requests are not a HIPPA violation or subject to an underlying right to privacy. 

Finally, OHA’s prior guidance indicating masks are no longer required for fully vaccinated individuals working outside remains in effect. 

Jordan Ramis will continue to keep you updated to help you navigate these rapidly evolving developments. We are also available to assist with formulating and implementing effective and efficient policies and procedures.

Peter Hicks is an employment and commercial litigation attorney and shareholder at Jordan Ramis PC. He can be reached at (541) 797-2079 or peter.hicks@jordanramis.com.

Thank you for your interest in this update. The information contained in this update is for the general interest of our readers and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact Peter Hicks.


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