(Photo | by Mircea)
On February 28, 2022, Governor Kate Brown announced masks will no longer be required in most indoor settings, including schools. The announcement comes amid declining case rates and hospitalizations across the West Coast. Alongside California and Washington, Oregon will adopt new indoor mask policies after March 11, 2022, at 11:59pm.
CDC Guidance
At the end of February, the Centers for Disease Control and Prevention (CDC) announced a change to its masking guidance and COVID-19 precautions. The CDC analyzes the number of occupied hospital beds, hospital admissions and COVID-19 cases in an area, then assigns a Low, Medium or High “Community Level” rating. The CDC recommends individuals living in communities at every level receive COVID-19 vaccinations and undergo testing when symptomatic. The CDC also recommends individuals living in communities at every level wear a mask after receiving a positive test result, being exposed to someone with COVID-19 or if experiencing symptoms.
In Low-rated communities, the CDC does not provide any additional recommendations. In Medium-rated communities, the CDC recommends individuals at high-risk for severe illness consult their healthcare provider about masking and other precautions.
In High-rated communities, individuals should also wear a mask in public indoor spaces. As of March 9, 2022, the CDC rated Deschutes, Crook, Jefferson and Lane Counties at the Medium Community Level. These Community Level ratings inform policy at the state and local levels, including whom should wear a mask and when.
Masks Lifted, Again
It was less than nine months ago when, on June 30, 2021, the Oregon Occupational Safety and Health Administration (Oregon OSHA) lifted the masking requirement from its COVID-19 workplace rules. Now, on March 12, 2022, Oregon OSHA will once again no longer mandate that employers require employees or others in the workplace to wear masks indoors, except in healthcare settings. Healthcare settings include hospitals and long-term care facilities, but also pharmacies, dental offices and behavioral healthcare offices, among others.
Oregon OSHA also announced a final decision has not been made regarding mask requirements in Exceptional Risk work settings, which include settings such as direct patient care, but also environmental decontamination services in a healthcare setting and aerosol-generating healthcare or postmortem procedures, among others. OSHA planned to continue engaging with shareholders when considering how to best protect employees in those higher-risk settings. Oregon OSHA has also announced it plans to revisit other workplace rules concerning infection control planning, exposure risk assessments, sanitation and notification requirements. It remains unclear when Oregon OSHA will rescind those requirements.
Local jurisdictions, school districts and private employers will retain the option to require masks. For example, Multnomah County will continue to require masks when entering certain county buildings such as healthcare and correctional facilities. Federal mask mandates, including those for public transit, are unaffected by this change and will continue to remain in place for the time being.
Multistate Employers
Although Washington, Oregon and California are taking action at the same time, the states have not taken identical approaches. Employers operating in more than one state should consider the restrictions of each jurisdiction. Washington Governor Jay Inslee announced masks would still be required in certain settings such as healthcare, correctional facilities and long-term care facilities. California Governor Gavin Newsom lifted the indoor mask mandate for fully-vaccinated individuals on February 15, 2022, but he also announced a broader list of settings where masks will still be required after March 12th, as compared to Oregon and Washington. Those additional settings include emergency shelters and homeless shelters, among others. Again, local jurisdictions within each state may also have additional requirements.
Best Practices
Although some restrictions are lifting, public health officials continue to warn that COVID-19 remains a serious public health threat. Employers should consider maintaining comprehensive health and safety protocols regarding sanitization and cleaning. Employers should still monitor COVID-19 in the workplace to protect the health of their employees and to minimize business disruptions when outbreaks occur. Employers should not throw out their mask supply just yet. COVID-19 rules and regulations are dynamic along with case counts and hospitalizations. It would not be a surprise if OSHA reverses course during a COVID-19 surge and requires universal masking in the workplace at some point in the future.
Chris Morgan is a partner at Barran Liebman LLP, where he specializes in complex employment advice, strategy and litigation. For questions, contact him at 503-276-2144 or cmorgan@barran.com.
Alysha Phelps is an attorney at Barran Liebman LLP, where she provides litigation strategy and compliance advice to employers in Oregon and Washington. For questions, contact her at 503-276-2183 or aphelps@barran.com.
