On May 13, 2021, the Centers for Disease Control and Prevention (“CDC”) issued new recommendations for individuals who are fully vaccinated. Specifically, the CDC stated that fully-vaccinated individuals[1] can resume activities without wearing a mask or physically distancing. However, the CDC’s guidance specifically does not override federal, state, local, tribal, or territorial laws, rules, and regulations as they related to masks and physical distancing requirements. In other words, if a local governing authority still requires masks and physical distancing, then individuals and businesses must comply with those rules regardless of vaccination status. What this means for Oregon employers is that Oregon OSHA’s rules regarding COVID-19 still apply and must be followed. Previously, that meant that employers were still required to have employees wear masks and maintain physical distancing, regardless of whether they were fully vaccinated.
On May 19, 2021, Oregon OSHA issued updated guidance for Oregon employers, consistent with the CDC and Oregon Health Authority’s (“OHA”) recommendations. Specifically, Oregon OSHA stated that employees who are fully vaccinated are not required to wear a mask or maintain physical distancing. Before employees are allowed to do this, however, employers must verify that the employees have been fully vaccinated as that term is defined by the CDC. While asking an employee whether they are fully vaccinated might be uncomfortable, it is not unlawful. Simply requesting proof of receipt of a COVID-19 vaccination is allowed and should be done. However, the inquiry should end there, and employers should avoid asking follow-up questions such as why an individual did not receive a vaccination. Also, if an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer might want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating state and federal medical privacy laws, such as the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). If an employee claims to be vaccinated but refuses to provide verification, the employer does not need to take further action but must continue to enforce the mask and physical distancing requirements for that employee.
Employers may choose to require employees to be vaccinated. If an employer makes this choice, then the employer should consider reasonable accommodations for those employees who cannot be vaccinated because of a disability, or because of a strongly held religious belief. Reasonable accommodations can include allowing unvaccinated individuals to continue employment wearing a mask and maintaining six feet of distance from other employees, remote working, or working in a private office or space. Leaves of absence can also be a reasonable accommodation, except that employers are not required to provide indefinite leaves.
If employers have vaccinated employees without masks, and unvaccinated employee with masks in the workplace, it is advisable to remind employees about your anti-harassment and respectful workplace policies to prevent incidences of bullying or discrimination against those who are not vaccinated. It is also a good idea to remind employees not to ask others about why they are not receiving a vaccine, as this could involve a medical issue.
[1] Individuals are considered “fully vaccinated” two weeks after their second dose in a two-dose series of vaccines, or two weeks after a single-dose vaccine.
