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New Jersey, Oregon, and Washington Remove Masking, Social Distancing Requirements for Vaccinated Employees

May 28, 2021

New guidance will allow employees in New Jersey, Oregon, and Washington to go maskless and stop social distancing if they provide their employers proof of vaccination against COVID-19.

On May 26, 2021, New Jersey Governor Phil Murphy issued Executive Order 243 (EO 243), which allows employers to permit employees working in non-public-facing workspaces to stop wearing face coverings and discontinue social distancing if they provide proof that they are fully vaccinated against COVID-19. EO 243 goes into effect June 4, 2021 at 6:00 am.

Similar developments have taken place in Oregon and Washington, which both require that employers take an affirmative step to confirm COVID-19 vaccination status before permitting employees to go maskless and stop social distancing. Like New Jersey, Oregon requires that employees provide proof of full vaccination. In Washington, while employers can require proof of full vaccination status, employers also can accept a signed statement from employees that they are fully vaccinated without requiring that employees submit documented proof of receiving a COVID-19 vaccine.

NEW JERSEY

Face Coverings and Social Distancing

  • Employers in workplaces that are not open to the public are not mandated to require employees to wear face masks or social distance at the worksite where the employees provide proof that they are fully vaccinated, as defined by the Centers for Disease Control and Prevention (CDC).
    • Where an employer is unable to determine individuals’ vaccination status or individuals are not fully vaccinated, employers must continue to require those employees to wear masks and practice social distancing in indoor spaces.
    • EO 243 does not specify how employers may obtain proof of vaccination, except to state that employers must do so “in accordance with federal and State law.”
    • Note that the state has take the position that employers may require employees to receive a COVID-19 vaccine in order to return to the workplace, unless the employee cannot get the vaccine because of a disability, because their doctor has advised them not to get the vaccine while pregnant or breastfeeding, or because of a sincerely held religious belief, practice, or observance.
  • Employers in workplaces that are not open to the public are not mandated to require customers, visitors, or other authorized individuals to wear face coverings or maintain social distancing at the worksite, regardless of their vaccination status.
  • Employers may impose stricter requirements regarding mask wearing and social distancing, but they cannot restrict individuals from wearing masks or in any way penalize or retaliate against individuals who elect to wear masks.

EO 243 was preceded by Executive Orders 241 and 242 (EO 241 and EO 242), which removed face covering and social distancing mandates in outdoor worksites and worksites open to the public, respectively, regardless of an individual’s vaccination status.

Telework No Longer Required

Since March 2020, Executive Order 107 has required New Jersey employers to accommodate their workforces for telework wherever practicable and to reduce on-site personnel to the minimal number necessary to ensure that essential operations can continue. EO 243 rescinds both of these requirements.

Daily Health Checks Still Required

EO 243 makes clear that employers must continue to adhere to the remaining requirements of Executive Order 192, including health screenings, sanitization, and notifying employees of known exposure.

OREGON

Effective May 18, 2021, the Oregon Health Authority issued guidance regarding face coverings and social distancing requirements for fully vaccinated individuals in Oregon. Under this guidance, all businesses and employers are specifically required to continue to apply the state’s face covering and physical distancing requirements unless the business

  • has a policy for checking for proof of vaccination status of individuals; and
  • requests proof of vaccination status from each individual; and
  • reviews each individual’s proof of vaccination prior to entry or admission.

Businesses may continue to require all individuals to wear masks and, under this guidance specifically, “must continue to do so if they do not have a policy for checking proof of vaccination or have not reviewed proof of vaccination for an individual, or if the individual has declined to provide such proof.”

The guidance also recommends, but does not require, that employers post signs about their face-covering policies.

WASHINGTON

Effective May 21, 2021, the Washington State Labor and Industries Department issued new workplace restrictions, which provide new guidelines for employers seeking to drop mask and social distancing requirements for vaccinated employees. Under this guidance, before ending mask and social distancing requirements, employers must confirm workers are fully vaccinated, either by having workers provide proof of vaccination or by having workers sign a document attesting to their vaccination status.

The guidance requires that employers be able to demonstrate they have verified vaccination status for workers who are not masked or socially distanced. Potential verification methods included in the guidance, none of which specifically are required, include

  • creating a log of workers who have verified they’ve been vaccinated and the date of verification;
  • checking vaccination status each day as workers enter a jobsite;
  • marking a worker’s badge or credential to show that they are vaccinated; or
  • using other methods demonstrating an employer has verified worker vaccination status.

The guidance further provides that when verifying an employee’s vaccine status, acceptable documentation includes a CDC vaccination card, a photo of the card, documentation from a healthcare provider, a signed attestation from the worker, or documentation from the state immunization information system. If an employee is not fully vaccinated or their vaccination status is unknown, employers must continue to require masks and social distancing.

NEXT STEPS FOR NEW JERSEY, OREGON, AND WASHINGTON EMPLOYERS

To the extent that employers elect to remove masking and social distancing requirements for fully vaccinated employees, employers should implement policies and procedures for verifying employees’ vaccination status. Employers should ensure that such policies comply with state and federal law, including the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the Equal Employment Opportunity Commission’s recent guidance.

RETURN TO WORK RESOURCES

We have developed many customizable resources to support employers’ efforts in safely returning to work, including vaccine status self-certification forms. Other resources include tracking of state and local orders on mask-wearing requirements, vaccine requirements and restrictions, return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, screening requirements, workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.

NAVIGATING THE NEXT.

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CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Orange County
Daryl S. Landy

Philadelphia
A. Klair Fitzpatrick

Princeton
August W. Heckman III

Washington, DC
Susan Harthill
Sharon P. Masling