As we previously wrote about, the State of Oregon and Multnomah County are each imposing new indoor mask requirements beginning today, August 13, 2021, in response to the escalating COVID-19 pandemic driven by the Delta variant. Yesterday, the State and County released details of their respective requirements (the “Rules”), which overlap in most respects and are summarized together below.
The Rules mandate that all individuals age five and older must wear “face coverings” at all times when visiting “indoor spaces or enclosed areas” within a business. (The State Rule also requires individuals age two and older to wear a face covering while using public transportation or inside transportation hubs.) The exceptions are as follows:
- When engaged in an activity that makes wearing a face covering impracticable, such as swimming, eating, drinking, or sleeping.
- When engaged in an activity that only involves members of the same household. (County Rule only)
- When removal is required for visual comparison, such as at a bank or if interacting with law enforcement.
- When a person has a medical condition or disability and has appropriately requested an accommodation to enable full and equal access to services, transportation, or other facilities open to the public (note: the definition of “appropriately requested” is unclear). (County Rule only)
- When receiving personal services or medical evaluations or treatment where a face covering is impractical, such as dental patients, beard services and cuts, facials, or nose/mouth waxing services.
- When engaged in athletic or other physical activities for which use of a face
covering is unsafe.
- When at a private individual workspace, which is a space that is used by one
individual at a time and is enclosed on all sides with floor-to-ceiling walls and a closed door.
- When at or in a location where the employee, contractor, or volunteer does not have a job that requires interacting with the public or with other employees, such as a large warehouse and at least six feet of distance can be maintained between other people. (County Rule only)
- When performing (such as playing music or giving a speech). (State Rule only)
Generally, “indoor spaces and enclosed areas” refers to any section of a business that is enclosed on three or more sides along with a roof. The definition of “business,” while broad, does not include private homes under either Rule. “Face coverings” are defined as cloth, paper, polypropylene, or medical-grade masks. Notably, the County Rule does not on its face permit the use of face shields, while the State Rule does.
Business operators must ensure that employees, customers, and other visitors comply with face covering requirements under the Rules. As with the prior Oregon Health Authority (“OHA”) and Oregon Occupational Safety and Health Administration (“OR-OSHA”) rules, businesses must provide face coverings for their employees (although not for customers and other visitors). In addition, businesses must post notices about the mask mandate.
Finally, the State and County Rules reiterate what is generally true under the law: that businesses must make reasonable accommodations for the face covering requirement under state and federal discrimination laws, most prominently the Americans with Disabilities Act and its state equivalent. Both Rules provide for civil penalties in the event of a violation.
In addition to its Rule, the County also published a helpful FAQ, which is available here.
The new OHA rules do not address the OR OSHA rules’ ongoing requirement that employees, patients and visitors generally wear face coverings in health care settings where patient care is provided. The OR OSHA rules in that setting remain in effect.
Employers with questions about how the State and County Rules affect their business should contact any of our Stoel Rives attorneys for assistance.