Delta Variant on the Rise, Causing New Mandates for Masks and Vaccinations

By Heather J. Van Meter - Bullard Law

August 10, 2021

In Oregon and Washington, and elsewhere in the country, the Delta variant of COVID-19 is causing spikes in the numbers of positive COVID-19 cases, as well as increased hospitalizations. The Delta variant is a mutation of the original COVID-19 virus. It is more easily transmitted and with higher viral load counts than prior variants, leading to higher positive case counts. Fully vaccinated persons can still transmit the Delta variant to others. Consequently, they can still get sick from this variant, albeit at lower rates of serious illness and hospitalization if vaccinated, according to currently available data.

With these issues in mind, new requirements are arising throughout the region, including Multnomah County, King County, and statewide in Oregon and Washington.
 
Washington
 
Gov. Jay Inslee issued a proclamation on August 9 requiring vaccines for all healthcare workers and all state executive branch workers under his control. Several other elected officials have or are expected to follow Gov. Inslee’s lead and require vaccinations for workers under their control as well. Seattle and King County have already joined in the proclamation, requiring city and county workers to be fully vaccinated. For now, Gov. Inslee’s proclamation does not extend to public schools and universities. However, many have already issued their own mask mandates or vaccine mandates, and the state is still considering a vaccine mandate for public schools and higher education institutions.
 
Workers subject to the mandate include hospital workers, healthcare workers, long-term care facility and nursing home workers, as well as custodial settings such as prisons. All employees subject to the proclamation must be fully vaccinated, meaning one or both shots given and two weeks for them to take full effect by October 18. This means if a person is receiving a two-dose vaccination regime, the second dose must be received by October 4. Exemptions are available for religious beliefs and as a disability accommodation. No “testing in lieu of vaccination” is permitted, however.

Several unions in Washington have also announced the mandatory vaccination requirements must be the subject of union bargaining prior to implementation.

Gov. Inslee is still considering a statewide indoor mask mandate, and the coming days and weeks of Delta variant data will inform this decision.
 
Oregon
 
On July 27, the Oregon Health Authority recommended a new mask advisory for all indoor public spaces due to the Delta variant spread and increased positive case numbers.  This recommendation was issued statewide but was not mandatory.
 
Subsequently, on August 4, Gov. Kate Brown issued a directive to the Oregon Health Authority to adopt a new temporary rule requiring all healthcare workers who have direct or indirect contact with patients to be tested weekly for COVID unless they provide proof of vaccination. Afterward, the Oregon Health Authority adopted temporary rule OAR 333-019-1010 requiring at least weekly COVID testing for all persons working in all physical and mental healthcare settings who have any direct or indirect patient care, including such employees as those working in clerical support, laundry and environmental services, and other indirect patient contact settings, unless the employee provides proof of fully vaccinated status. Employers are required to maintain worker proof of vaccination or all weekly COVID testing results. Full compliance with this testing or vaccine regime is required by September 30. Violations are subject to a $500 per day fine. The requirement extends into January 2022 unless earlier lifted, which is unlikely during the winter flu season.
 
Then on August 9, Multnomah County became the first local jurisdiction to mandate masks at all indoor public spaces. The mask mandate begins this Friday, August 13, and is required of all persons age five or older regardless of vaccination status. The mandate applies county-wide. Persons eating or drinking at food establishments are exempted. Enforcement is complaint-based, and violations can carry up to a $1,000 fine.
 
Also On the Horizon
 
Governor Inslee is still considering a broader vaccine mandate and a statewide mask mandate regardless of vaccination status. In addition to Seattle and King County, other cities and counties also are expected to adopt vaccination mandates or mask mandates.
 
Governor Brown is likewise considering a statewide mask mandate regardless of vaccination status. Additionally, as in Washington, other cities and counties are considering their own mask mandates. Oregon’s Bureau of Labor and Industries may also adopt rules regarding workplace safety if the Delta variant cases continue to rise.

Many public and private schools and higher education institutions have already adopted policies for the Fall and return of students, including vaccine mandates and mask mandates. In particular, public school districts are scrambling to put policies and rules in place before the start of school.
 
Several private businesses have adopted or are considering vaccination mandates for in-office work.  Other private businesses have extended their current work-from-home regimes until Fall or into 2022 with the Delta variant spread.  Other private businesses have adopted mask mandates in states that do not yet require masks at workplaces.
 
Moving Forward
 
Employers are busy navigating the turbulent waters of COVID compliance, employee retention and satisfaction, and employment recruiting shortfalls.  The country is experiencing record high unfilled job openings, which is expected to increase as vaccine and mask mandates increase.
 
All private and public employers are encouraged to monitor state and local news sources, as the Delta variant rise in cases is leading to weekly and daily changes in requirements.  Additionally, employers are encouraged to contact Bullard Law for advice on implementing various new requirements as needed in this fast-changing environment.