200 SW Market Street, Suite 1950
Portland, Oregon 97201
May 19, 2021
In response to the new Oregon Health Authority (OHA) guidance regarding the masking requirements for vaccinated persons (see yesterday’s alert), the Oregon Occupational Safety and Health Administration (OR-OSHA) today released its own statement regarding masking requirements for vaccinated persons and how employers are to respond. As with yesterday’s OHA guidance, some answers are provided, but also more questions are raised.
In short, OR-OSHA’s statement and current rule provide the following takeaways:
As with OHA’s guidance released yesterday, OR-OSHA’s statement applies statewide.
What OR-OSHA Said
The key part of OR-OSHA’s statement today says:
“[I]f the employer chooses to allow either employees or visitors to the workplace to make use of the vaccine exemption, the employer does not need to enforce the physical distancing and facial covering requirements in relation to those individuals, provided that the employer verifies the vaccination status of such individuals. An employer who requests and reviews verification of vaccination may permit fully vaccinated individuals with such proof of vaccination to go without a mask, face covering, or face shield, and does not need to enforce physical distancing requirements for such individuals. If an individual claims to be vaccinated but refuses to provide verification of vaccination status, the employer need take no further action but must enforce the physical distancing and facial covering requirements without regard to the exemption.” (underlining in original)
What Employers Must, Can and Cannot Do According to OR-OSHA
OR-OSHA’s position is that employers can choose to allow employees or other visitors who are fully vaccinated the option to request a “vaccine exemption,” to the otherwise-applicable requirement to wear a face mask, face covering, or face shield (“masking requirement”), which is consistent with yesterday’s OHA guidance. Employees and other visitors who are given a “vaccine exemption” by the employer are also exempt from the physical distancing requirements at the place of employment.
However, unlike the OHA guidance, OR-OSHA’s position is that employers MUST request verification from any employee or visitor who requests a “vaccine exemption” from the masking requirement. Additionally, the employer MUST review the vaccination verification paperwork provided. Although unstated, the verification paperwork predominantly will mean the vaccine card given to vaccinated persons or medical record indicating full vaccination, all of which is likely HIPAA-protected personal health information. Employers requiring that employees provide private health information may be violating HIPAA or other state and federal privacy laws. OR-OSHA does not indicate whether or how employers can verify the authenticity of the vaccine card or other submitted verification paperwork.
If an employee or visitor requests a “vaccine exemption” from the masking requirement but fails or refuses to present verification paperwork, the employer is not required to inquire further. However, the employer must then deny the request for an exemption and must continue to enforce all applicable masking and physical distancing requirements for that person.
What OR-OSHA Did Not Address
What is unstated in OR-OSHA’s statement is that various laws such as HIPAA and state and federal privacy laws may prevent employers from requiring verification paperwork, and employers could still be held liable under employment discrimination laws or businesses held liable under public accommodation laws for requiring verification paperwork. In addition, employers also could still be held liable under employment discrimination laws for treating vaccinated persons differently in other ways or for treating some employees requesting a “vaccine exemption” differently than others making the same request.
State and federal disability laws also control disability accommodations, such as breathing difficulties or other disabilities prohibiting compliance with the masking requirement (as noted in yesterday’s alert), and all employers are still required to comply with all disability laws. Employers could also be held liable for any retaliation against an employee for either requesting a “vaccine exemption” or for any employee or visitor refusing to provide verification paperwork. As before, employers can still be held liable for failing to follow and enforce OR-OSHA rules applicable for COVID-19.
This leaves employers in a challenging situation – on the one hand requiring that employers request verification of vaccine, but leaving unaddressed all of the legal risks associated with that requirement.
Bullard Law will be reviewing all additional agency rule changes and guidance as it becomes available, which will hopefully provide further clarification. Stay tuned for future alerts, and contact our office with any questions.
Additional Thoughts for Employers
If employers are concerned about a “two-class” system of vaccinated and unvaccinated employees, the safest course may be to simply maintain all masking and physical distancing requirements in place until these requirements are lifted for vaccinated and unvaccinated alike.
Although employers are required to request and review vaccine verification paperwork, not one type of document is required. The vaccine card is likely the most common, but other paperwork could be submitted. Employers are not provided any exemption from HIPAA and state and federal privacy laws to verify the vaccine verification paperwork. Employers are advised to familiarize themselves with the types of vaccine cards being given to vaccinated persons. Employers should advise employees to provide only the vaccine verification paperwork and not other medical information. Further, although OR-OSHA does not provide any guidance, employers should consider keeping a copy of the vaccine verification paperwork submitted by employees and visitors in case OR-OSHA or other state agencies, or employees or visitors, dispute a person’s “vaccine exemption.” If employers retain copies of verification paperwork voluntarily submitted by all employees and visitors requesting a “vaccine exemption,” they should be maintained in a confidential file separate from any employee personnel files.
No guidance is given to employers regarding the handling of employees or visitors who provide insufficient or falsified vaccine verification paperwork. No guidance is given to employers regarding whether they can request, or are required to seek, further documentation if an employee or visitor presents what appears to be insufficient or falsified vaccine verification paperwork. If employers are concerned that the submitted verification paperwork is insufficient or false, the employer could ask the employee or visitor to voluntarily submit additional or different paperwork, but the employee or visitor is not required to do so (in which case the employer will need to decide if the provided paperwork is sufficient to allow a “vaccine exemption” to the person). Employers should be mindful of treating all employees equally throughout this process.
What Has Not Changed
All other aspects of OR-OSHA’s recently adopted permanent rules, in OAR 437-001-0744, remain in place (see the prior alert). This means physical distancing for all except proven vaccinated persons is required except where not feasible (e.g., hairstylists, medical care); masking requirement remains the same for all except proven vaccinated persons if the employer chooses to forego the masking requirement for vaccinated persons; cleaning and sanitizing at the workplace continues; HVAC maintenance and inspection continues; posters and signage and employee training requirements remain the same; and infection control plans are still required to be followed.
Reminder, OR-OSHA rules are mandatory for employers.
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.