By Conn Maciel Carey’s COVID-19 Task Force

On May 19, Oregon OSHA issued a Statement Regarding Vaccination Status in Relation to Oregon’s Facial Covering and Social Distancing Requirements in which it advises that employers may discontinue enforcing face covering and physical distancing requirements as to employees and/or visitors (which apparently includes customers) only if the employer verifies the vaccination status of any such individuals attempting to enter without a face covering.  Notably, Oregon OSHA further advises that the employer must enforce the physical distancing and facial covering requirements without regard to the exemption with respect to anyone who refuses to provide verification of their vaccination status.  Over the past year, many retailers struggled to craft a workable policy that complied with the intent of Oregon OSHA’s expectation that they deny entry/refuse service to customers who refuse to wear a mask.  As we discussed in prior blog posts, placing front line retail workers in such a position was not only infeasible, but it put them at greater risk of harm by customers who reacted in a violent manner when asked to wear a face covering.  It remains to be seen, however, whether Oregon OSHA will adopt a rational approach respect to vaccination status verification requirements for retailers and other employers with public-facing operations.

Notably, Oregon OSHA’s Statement references the Oregon Health Authority’s May 18 Interim Guidance for Vaccinated Individuals, which includes retailers in the definition of a covered business; it does not, however define visitor.  We nonetheless read the OHA’s Interim Guidance and the OR OSHA Statement together to treat customers/shoppers as visitors.  According to the OR Health Authority, a business must continue to enforce the physical distancing and face covering requirements unless it:

• • Has a policy for checking for proof of vaccination status of individuals;
  • Requests proof of vaccination status from each individual; and
  • Reviews each individual’s proof of vaccination prior to entry or admission.

Businesses may, of course, continue to apply and enforce the mask, face covering and face shield guidance, and physical distancing requirements in Oregon’s COVID-19 guidance to all individuals, regardless of vaccination status, if they so choose.  Indeed, while many employers with “closed” workplaces have already begun lifting their face covering and/or physical distancing requirements for fully vaccinated employees, those employers that have employees who regularly interact with members of the public, such as those in the retail and hospitality sectors—are opting to continue requiring customers (and other visitors) to wear a face covering and physically distance, regardless of their vaccination status.  These employers recognize the impracticality of a rule requiring them to verify the vaccination status of each person who enters their store, restaurant or hotel, and have determined that such a requirement simply cannot be operationalized in an effective manner.

Washington DOSH Aligns Workplace Requirements With the CDC and Provides Guidance on Vaccination Verification

On May 21, Washington DOSH updated DOSH Directive 1.70 (General Coronavirus Prevention Under Stay Safe – Stay Healthy Order), with the stated purpose of making it consistent with current CDC, Washington State Department of Health, and Washington State Governor’s guidance for persons fully vaccinated for COVID-19.  Just like the CDC, the State of Washington is explicitly allowing Local Health Jurisdictions to adopt and enforce additional requirements related to COVID-19 above and beyond what Washington DOSH is mandating.  In other words, be sure to check the rules and regulations currently in effect in the city and/or county in which you operate to determine whether it similarly allows employers to discontinue certain controls relative to fully vaccinated workers because those rules will take precedence over the DOSH Directive.  Note, also, that the State has not relaxed the face covering or distancing requirements for people working in healthcare (including long-term care, doctor’s offices, hospitals), public transportation (aircraft, train, road vehicles), K-12 Schools, childcare facilities, and day camps in locations where students are present, correctional facilities, or homeless shelters.  Regardless of the industry segment, only infrequent intermittent passing within 6 feet is allowed between unvaccinated workers without wearing coverings, masks, or respiratory protection.

Significantly, the WA DOSH Directive includes a requirement that an employer which chooses to relax requirements must have a demonstrable process to verify vaccination status.  Fortunately, while DOSH will mandate the adoption and implementation of such a process, employers will not be required to keep a copy of employee vaccination records which would require secure and confidential handling as a medical record.  Presumably anticipating that employers will have a host of questions about how they can or should go about verifying employee vaccination status, WA DOSH included several examples in the Directive of how an employer may verify status, such as (a) creating a log of the names of workers who have been verified as fully vaccinated and the date that the verification was done; (b) checking vaccination status each day as workers enter a jobsite; and/or obtained documented worker attestations of vaccination status.   Most surprisingly, however, is that DOSH included among such approaches a system whereby employers mark a worker’s badge, site credential, or other individually identified item to indicate the worker’s status as fully vaccinated.  Needless to say, such a system has the potential to create controversy between workers and/or with members of the general public.  That is not to say that such a process is unworkable, but rather to encourage employers to evaluate the various options made available to them by the Directive and consider how and whether such an approach will work for them.