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COVID-19 Delta Variant Surge Leads to New Statewide Mask and Vaccine Mandates in Oregon and Washington

August 23, 2021

By Heather J. Van Meter

Delta Variant Continues to Surge

The Delta variant of the COVID-19 virus continues to surge throughout the region, leading to the highest numbers of cases to date, and causing record hospitalization rates which are threatening to overwhelm the region’s hospitals.  The Delta variant is more transmissible and with higher viral load transmissions than prior variants of the COVID-19 virus.  The Delta variant is also more easily transmitted by vaccinated persons, meaning vaccinated persons can still transmit the virus.  Vaccinated persons also are experiencing “breakthrough” cases, meaning they are getting ill from the virus despite being vaccinated, at increasing figures.  Currently, vaccinated persons make up around 15% of all confirmed or suspected COVID-19 cases. 

Additionally, data is emerging that the vaccine effectiveness slowly wears off over time, possibly as early as six to nine months, so individuals who were vaccinated earlier this year may need booster shots to maintain vaccine protection. Booster shots are already recommended for most immune-compromised persons. People who were infected with the COVID-19 virus and recovered also create antibodies that wear off over time, although the timing of this is less certain. People who were previously infected are still encouraged to get vaccinated. Indeed, the federal and state governments are urging all persons twelve and over to be vaccinated, absent a medical condition making vaccination ill-advised.

Current statistical models show the Delta variant’s peak may be occurring sometime in September or October; however, many variables such as mask mandates or increased vaccination rates may alter the timing. Additionally, it is important to be aware that the Delta variant is just one of many variants spreading around the country and around the world. While the Delta variant will peak and subside, it will remain active for quite some time, and other variants may rise. For these reasons, employers should be aware that the workforce and business and economic effects of COVID-19 are expected to continue for many months or years.

Planning for COVID-19 over the short and long term is influencing government edicts as well as impacting employer actions and employment policies, as discussed below.

Oregon and Washington Masking and Vaccine Mandates

In response to the Delta variant surge, the governors of Oregon and Washington have reintroduced statewide mask mandates and issued unprecedented mandates for vaccinations in government, healthcare settings, and schools. 

Oregon: Oregon state reintroduced a statewide mask mandate for public indoor places that took effect August 13. The mask mandate applies regardless of vaccination status.

Oregon OSHA also revised its guidance on OAR 437-001-0744, clarifying that physical distancing and regular sanitation are not required except in particular settings such as healthcare, but masking (mask, covering, or shield) is required for employer’s indoor spaces. Oregon OSHA also advised that the employer ensures mask mandate compliance by all workers, contractors, volunteers, and visitors for indoor spaces. As well as make “reasonable efforts” to ensure compliance by posting signs at every entrance regarding the mask mandate, and if possible, provide audible reminders to wear masks on intercom systems.

In addition to the masking requirements, Oregon’s Governor also initially introduced mandatory weekly testing or vaccinations for all healthcare workers on August 12 but then reversed course on August 19 and made vaccinations mandatory for healthcare workers without the option of weekly testing. Healthcare workers will now be required to be fully vaccinated by October 18 or six weeks after full Food and Drug Administration approval for the vaccine(s) becomes final, whichever is later. The Oregon Health Authority is expected to issue rules any day implementing the Governor’s decision. There is a state statute prohibiting mandatory vaccines for certain healthcare workers that Governor Brown seeks to override.

Along with healthcare workers, Governor Brown also mandated all K-12 staff and teachers and volunteers be fully vaccinated by October 18 or six weeks after full Food and Drug Administration approval for the vaccine(s) becomes final, whichever is later. Rules implementing this portion of the Governor’s decision also are expected any day.

Governor Brown previously announced, on August 11, a requirement that all state executive branch employees be vaccinated by October 18 or six weeks after full Food and Drug Administration approval for the vaccine(s) becomes final, whichever is later. Other statewide elected officials followed suit for their departments and agencies, including the State Treasury, Department of Justice, the Secretary of State, and Bureau of Labor and Industries. 

In both Oregon and Washington, proof of vaccination status will be required for all persons mandated to be vaccinated.  Exemptions from vaccination mandates are to be made available with proper documentation for disabled persons and based on religious objections, but the documentation requirements vary by state. 

Washington: Washington’s Governor Inslee reintroduced a statewide mask mandate for public indoor places that takes effect August 23. The mask mandate applies regardless of vaccination status. 

Governor Inslee also announced on August 18 a vaccine mandate for all childcare settings, early learning centers, K-12 public, and private school personnel, and higher education, with full vaccination and proof of vaccination required by October 18.

Governor Inslee previously announced, on August 9, a vaccine mandate for all healthcare workers and healthcare settings, as well as all executive branch employees and contractors, and volunteers. As with others, full vaccination and proof of vaccination are required by October 18.

Oregon and Washington employers with questions about compliance with any of the mask and vaccine mandates are encouraged to contact Bullard Law.

Public and Private Employers Weigh Vaccine Options

Public and private employers not already subject to state vaccine mandates are considering many options for making vaccinations or regular testing mandatory for workers or alternatives to encourage vaccinations. Some employers are choosing to make vaccinations mandatory, but with a tight labor market, many employers are concerned about losing valued employees due to vaccine mandates. As a result, many employers are considering alternative combinations of tools to encourage vaccination, including monetary incentives or more punitive measures. Many creative options to encourage vaccination also are emerging, including creative bonuses. 

Employers with union collective bargaining agreements are differently impacted than non-union employers and must consider the union contract implications. 

All employers with questions about creating and implementing COVID-19 vaccine or testing policies are encouraged to contact Bullard Law.

The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.

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