Employer Guidance for Complying With Oregon's Mask Requirements

Update November 13, 2020: This blog has been updated to reflect current guidance about Oregon's mask requirements for employers.

In response to COVID-19, Oregon Governor Kate Brown has issued a number of Executive Orders mandating mask-wearing, and the Oregon Health Authority (OHA) has published its own extensive industry-specific guidance as well. (See our prior advisory here.) But as the pandemic looms on, and even sees new spikes in infections, those guidelines have evolved.

Given that the Executive Order language, OHA guidance, and how state agencies are interpreting and enforcing mask requirements can be confusing, many businesses have raised questions about the scope of the requirements and how to comply. To help navigate those concerns, we offer a short summary of current Orders, and suggest best practices in response to Oregon businesses' most frequently asked questions.

Summary on Face Coverings:

All Businesses – whether open to the public or not -- must require a mask, face shield, or face covering be worn in the following situations:

• By all employees, contractors, volunteers, students, and customers in both indoor and outdoor areas the employer controls unless:
  
  • For employees, contractors and volunteers, the person is not required to interact with the public or other employees and can otherwise maintain six feet of distance;
  • The person is eating or drinking;
  • The mask cannot be worn given the activity (i.e. swimming).
• By the general public when visiting indoor spaces open to the public (for example, the lobby of a business not specifically identified above);
• By the general public when outdoors if at least six feet of distance cannot be maintained between others outside the individual's household; and
• By employees in private businesses in common areas or if six feet of distance cannot be maintained.

These requirements began with Governor Brown’s Executive Order dated July 15, 2020. OHA has since expanded these requirements first in August and then again on October 19, 2020. The latest Guidance can be found here. This Guidance was incorporated into the Oregon OSHA's Temporary Rule Addressing COVID-19 Workplace Risks (the “OR-OSHA’s Temporary Rule”), which goes into effect for all workplaces in Oregon on November 16, 2020.

In the latest guidance, the OHA distinguishes between face masks, face shields and face coverings. The Guidance recommends that people wear a face mask (which is defined as medical grade) or face covering (cloth, paper or polypropylene) and not a face shield alone unless there is a specific need (i.e. a medical condition or when you need to allow people to read lips or see your mouth movements and similar limited reasons).

Businesses are required to:

• Provide face masks, face coverings or face shields for employees
• Provide accommodations for employees, contractors, students, customers and visitors of required by laws (i.e. the ADA)
• Post clear signs about the mask, face covering or face shield requirements.

Businesses are encouraged (but not required) to:

• Post signs about the mask, face covering or face shield in languages commonly spoken by customers, visitors and students (although they may be required for certain industries under OR-OSHA’s Temporary Rule);
• Provide, at no cost, face coverings for customers and visitors who do not have one.
• Educate employees:
  
  • On how to safely communicate with people who cannot wear masks, face coverings or face shields;
  • That they may need to use a face shield or other transparent face covering to communicate with certain individuals who must see your mouth.

Employees in both private businesses and those open to the public must wear face coverings, masks or face shields in all public spaces including hallways, bathrooms, classrooms, elevators, lobbies, break rooms, meeting rooms and other common and shared spaces unless in a private, individual workspace not shared by other people.

FAQs and Best Practices for Compliance

My business is open to the public, but our management team works in private offices away from the customers. We can take our masks off in the office, right?

Although the Executive Order exempts employees who work in public places from the mask wearing requirement if they are able to maintain six feet distance and are not interacting with the public, the guidance still strongly encourages it. Moreover, requiring masks for some employees and not others may be an employee relations problem. Finally, because enforcement of the mask policy should be borne by managers when customers or employees refuse to wear a mask, managers must be ready to respond quickly to de-escalate any volatile situation.

Best practice requires that employees wear masks at all times, unless eating or drinking, even if alone in a private office or otherwise more than six feet away from others, unless working in isolation from others is a reasonable accommodation to an employee who cannot wear any face covering. That said, such a policy might be too hard to enforce and better to have a policy that is universally enforced, rather than risk an isolated violation. Thus, allowing people to remove their masks when they are in their own offices with the door closed may be a reasonable compromise.

A customer enters without a mask, even though I have a sign indicating masks are mandatory. Can I just ignore them?

No. OR-OSHA requires that businesses both post signs about required face coverings and enforce the requirement.

It is not sufficient to simply assume a mask-less customer has a condition which prevents mask wearing; nor is endangering other customers or employees a reasonable accommodation. Someone with a medical condition or disability preventing them from wearing a mask may be entitled to a different accommodation, as described in the following FAQ.

A customer refuses to wear a mask due to an unspecified disability. Do I have to refuse service? 

Not necessarily, but you also do not have to allow mask-less entry. OR-OSHA has issued an advisory memo for businesses to address non-complying customers. In short, it recommends the following:

• Ensure you have disposable masks you can offer the customer. It is possible the person simply forgot to bring one.
• Get a supply of face shields that you sanitize between uses. Customers may say they cannot wear a mask due to a medical condition. In general, individuals whose breathing may be compromised by wearing a mask should be able to wear a face shield.
• Ask the customer what accommodation they believe would be effective. Keep an open mind and be flexible while maintaining the safety of staff and customers. A reasonable accommodation may include bringing items out to a customer's car, or, if the customer can wear a mask, but only for a short period, allowing them to move to the front of the line.
  
  A reasonable accommodation does not include allowing the customer to interact with employees or other customers from a distance of less than six feet without a mask, given it would jeopardize the health and safety of those with whom the mask-less customer interacts.
• If neither of those options work, a manager-level employee should tell the customer they are unable to serve them and ask them to leave the premises. If the individual refuses to leave, follow your normal procedures for disruptive customers, including calling the police. 

A customer refuses to wear a mask because they believe it's unfair or violates their "civil liberties"? Do I have to accommodate those explanations?

No. You should refuse service if a customer refuses to wear a face covering for these or similar reasons. Management-level employees should be trained to deal with these customers, including involving law enforcement if they become belligerent.

How do I reasonably accommodate a disability of a customer and still comply with the Executive Order and OR-OSHA's Temporary Rule?

The Executive Order states that faces masks or face shields are required. If a customer (or employee) has a breathing problem, a face shield should be a reasonable accommodation. If the face shield is not an option, explore other options with the customer, including curbside pick-up or an appointment.

The Governor's office has made clear that "reasonable accommodation does not include simply allowing a customer inside without a mask, face covering or face shield." Remember, businesses are not allowed to inquire into the nature of a customer's claimed disability or for "proof" of the condition.

How do I reasonably accommodate a disability of an employee and still comply with the Executive Order?

Employees who seek a medical exemption to wearing a mask are, in essence, seeking a reasonable accommodation for a disability. As with any disability accommodations, employers are permitted to collect further information from the employee's medical provider to assist in the accommodation process and determine if there is a reasonable accommodation which will permit the employee to perform the essential functions of their job.

Employers are not required to provide the accommodation requested, e.g., to work without a mask, and are not required to provide an accommodation which causes an undue hardship on the business. Oregon OSHA clearly notes in the Temporary Rule that reasonable accomodation does not exempt individuals from the requirement to wear masks. Further information to help you assess your accommodation obligations can be found here.

What are the consequences of non-compliance?

There are potential criminal penalties for violations of the Governor's Executive Order. State agencies are taking the lead in enforcing the mask mandate, and OR-OSHA may cite businesses that do not comply.

OR-OSHA has indicated an intent to focus on education, but if complaints are voluminous or significant enough, it may issue fines with the first reported violation. Complaints about a business not complying with the mask mandate can be filed with OR-OSHA by employees or members of the general public, and OR-OSHA has reported receiving large numbers of these complaints since COVID-19 began.

Finally, Oregon's Bureau of Labor & Industries may investigate, fine, or even bring a lawsuit against businesses that discriminate on the basis of disability by failing to reasonably accommodate either customers or employees, if accommodation is possible. Businesses are not required to accept the accommodation requirement dictated by a customer or employee (such as simply not wearing a mask) and should not feel compelled to place other employees or customers at risk by allowing reasonable accommodations which do not adequately protect others.

If you have any additional questions regarding these topics, please contact Christie Totten (christietotten@dwt.com) or Carol Bernick (carolbernick@dwt.com).

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.