OHA Issues Revised Mask and Face Coverings Guidance as Oregon Reopens
March 23, 2021
Kathryn M. Hindman & Anne Denecke
The Oregon Health Authority (“OHA”) issued revised guidance (“Guidance”) on March 12, 2021 concerning the use of face masks, shields, and coverings to reduce the spread of the coronavirus. The Guidance covers all Oregonians with several exceptions, including childcare, K-12 schools (who must comply with Ready School, Safe Learners guidance), areas within workplaces where employees live together for periods of time (such as fire stations), licensed health care facilities, health care offices, shelters and transitional housing, and private residences.
Definitions. The Guidance lists detailed definitions, a few noted here:
“Common or shared spaces” are areas where individuals may interact such as a restroom, breakroom, hallway, elevator, lobby, classroom, large room with cubicles, meeting rooms, conference rooms, and any area open to the public.
“Face coverings” are cloth, polypropylene, paper, or other face covering that cover the nose and the mouth and rests snugly above the nose, below the mouth, and on the sides of the face.
The following are not face coverings because they allow droplets to be released: a covering that incorporates a valve that is designed to facilitate easy exhalation, mesh masks, lace masks or other coverings with openings, holes, visible gaps in the design or material, or vents.
Notably and consistent with Oregon OSHA and the CDC, OHA does not recommend that individuals wear a face shield instead of a mask or face covering, and encourages people to continue to wear a mask or face covering whenever they are within six feet of people who do not live in the same household.
The Guidance still “strongly recommends” that masks, face coverings, and shields be worn at all times when around individuals outside your household, including inside private residences.
“Individual who is fully vaccinated” means an individual who has 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.
“Indoor spaces open to the public” means indoor spaces, whether publicly owned or privately owned, where the public has access by right or invitation and includes building lobbies, shared or common spaces, classrooms, elevators, bathrooms, and buildings or spaces where people may gather for social, civic, cultural, or religious purposes.
“Licensed health care facility” means any facility licensed by OHA or ODHS under ORS 441.
“Masks” means a medical grade mask.
“Outdoor spaces open to the public” means any outdoor space where the public has access by right or invitation, and includes shared or common spaces, outdoor sports fields, parks, rooftop terraces, sidewalks, or spaces where people may gather for social, civic, cultural, or religious purposes.
“Private individual workplaces” are indoor spaces used for work by one individual at a time that is enclosed on all sides with walls from floor to ceiling and with a closed door. In other words, a workplace that consists of a cubicle or a partition(s) is not a private individual workplace.
“Public and private workplaces” means indoor or outdoor places where people work, including but not limited to businesses, banks, food processing plants, manufacturing facilities, construction sites, warehouses, and farms.
“Transportation hub” is any airport, bus terminal, marina, seaport or other port, subway station terminal (including any fixed facility at which passengers are picked-up or discharged), train station, U.S. port of entry, or any other location that provides transportation subject to the jurisdiction of the United States.
For employers, the Guidance mandates that all individuals wear a face mask, face covering, or face shield at all times unless the individual (a) is eating or drinking: (b) must remove the mask briefly to confirm their identity (such as at a bank or interacting with law enforcement); (c) is in a private, individual workspace; or (d) is in a private indoor or outdoor setting and is fully vaccinated, or is at low risk for severe COVID-19 disease and is with others who are fully vaccinated.
Practically speaking, the Guidance should not be interpreted as meaning it is a good idea to begin scheduling “no face mask” meetings in private indoor or outdoor settings limited to those who have been vaccinated. First, the CDC has clarified that even vaccinated individuals may be carriers of the virus, and considering that many employees, vendors, and visitors may not be vaccinated, masks are still “strongly recommended.” Second, it is too early to tell who is “at low risk for severe COVID-19” even though the individual is not vaccinated. Finally, employers who hold meetings where face masks are not required in private indoor or outdoor settings and limit attendance to those employees who have been vaccinated are at risk for discriminating against individuals who are not vaccinated due to underlying medical conditions or religious reasons.
The Guidance requires all employers to (a) provide masks, face coverings, or face shields for employees; (b) provide accommodations for employees, contractors, volunteers, customers and visitors if such accommodations are required by state or federal disability discrimination laws (including the Americans With Disabilities Act – “ADA”), labor laws, public accommodation laws (such as Title II of the ADA), or OHA public health guidance, if applicable; and (c) post clear signs about the mask, face covering, and face shield requirements
The Guidance advises, but does not require, persons responsible for businesses, indoor or outdoor spaces open to the public, public and private workplaces, private career schools, and public and private colleges and universities to (a) provide masks, face coverings or face shields for customers and visitors who do not have one; (b) post signs about the mask, face covering, and face shield requirements in languages commonly spoken by customers, visitors, and students; and (c) educate employees and contractors on (i) how to safely work and communicate with people who cannot wear masks, face coverings, or face shields; and (ii) that they may need to replace a mask or face covering with a transparent cover such as a face shield while communicating with an individual who needs to read lips or see facial expressions to communicate.
The Guidance reminds us that to the extent Oregon OSHA rules governing specific workplaces contain requirements for masks, face coverings, or face shields that are more stringent than this Guidance, the Oregon OSHA requirements must still be followed. Similarly, employers must continue to follow federal guidelines concerning masks and coverings where such guidelines are more stringent. For example, the CDC has issued an Order that prohibits individuals from wearing a face shield alone on public transportation or in transportation hubs (unless that person has an ADA disability.)
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© Arbor Employment Law 2021