OAR 333-019-1011: Masking Requirements to Control COVID-19 in Health Care Settings

(1) COVID-19 is an infection caused by a virus, severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). This virus can be spread by infected persons without symptoms as well as those with symptoms. It undergoes frequent mutations as it replicates, which over time has resulted in variants that are more transmissible, cause more severe disease or have other features of public health concern such as decreased vaccine effectiveness. Consistent masking by health care providers in health care settings, as well as masking by visitors and patients provides protection to health care providers and to the people they care for. Masks act as source control if the provider has COVID-19 and provide a protective effect if a patient has COVID-19. (2) The requirements in this rule remain in effect unless the State Public Health Director or State Public Health Officer issues an order stating that the requirements in this rule are no longer necessary to control COVID-19. If such an order is issued the Oregon Health Authority must provide notice to interested parties and otherwise take reasonable steps to ensure notice of the order is provided to those affected by this rule in accordance with ORS 183.335(1). The State Public Health Director or State Public Health Officer may also rescind such an order, and such a rescission must also be noticed as provided in this section. In determining whether this rule should remain in effect the State Public Health Director or State Public Health Officer will take into consideration as least the following information: (a) The degree of COVID-19 transmission, as measured by case rates, percent positivity, and any other objective metrics indicative of current or potential transmission in Oregon. (b) COVID-19 related hospitalizations and deaths. (c) Disparate COVID-19 related health impacts on communities of color and tribal communities. (d) Guidance from the U.S. Centers for Disease Control and Prevention. (e) Proportion of the population partially or fully vaccinated. (3) Except as otherwise described in section (4) of this rule, this rule applies: (a) To any health care setting where health care personnel are providing care or services and the Oregon Occupational Health and Safety Division (Oregon OSHA) rule, OAR 437-001-0744, does not apply because the setting is not a place of employment, as that is defined in ORS 654.005, subject to Oregon OSHA’s jurisdiction. (b) If it contains requirements that are more restrictive or are in addition to Oregon OSHA’s rule, OAR 437-001-0744. (4) The Oregon Department of Human Services (ODHS) has established mask and face covering requirements for health care providers and visitors in settings that it licenses or certifies. Therefore, this rule does not apply to: (a) Adult foster homes licensed by ODHS under ORS 443.705 to 443.825. (b) Developmental disability child foster homes certified by ODHS under ORS 443.830 to 443.835. (c) Residential training homes and residential training facilities licensed by ODHS, as defined in ORS 443.400. (5) To the extent there is a conflict between this rule and OAR 333-019-1025, a more restrictive requirement in this rule applies. (6) For purposes of this rule, the following definitions apply: (a) "Face covering" means a cloth, paper or disposable face covering that covers the nose and mouth and includes a medical-grade face mask. (b) "Face mask" means a medical-grade face mask. (c) "Health care personnel": (A) Means individuals, paid and unpaid working, learning, studying, assisting, observing, or volunteering in a health care setting providing direct patient or resident care or who have the potential for direct or indirect exposure to patients, residents, or infectious materials, and includes but is not limited to any individual licensed by a health regulatory board as that is defined in ORS 676.160, unlicensed caregivers, and any clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing, student and volunteer personnel. (B) Does not mean parents, guardians or foster parents providing care to their children or foster children in the home. (d) "Health care setting" means any place where health care, including physical, dental, or behavioral health care is delivered and includes, but is not limited to any health care facility or agency licensed under ORS chapter 441 or 443, such as hospitals, ambulatory surgical centers, birthing centers, special inpatient care facilities, long-term acute care facilities, inpatient rehabilitation facilities, inpatient hospice facilities, nursing facilities, assisted living facilities, and residential facilities, behavioral health residential facilities, home health care, hospice, pharmacies, in-home care, vehicles or temporary sites where health care is delivered or is related to the provision of health care (for example, mobile clinics, ambulances, non-emergency medical transport vehicles (NEMT), secure transportation, and street based medicine),outpatient facilities, such as dialysis centers, health care provider offices, dental offices, behavioral health care offices, urgent care centers, counseling offices, school-based health centers, offices that provide complementary and alternative medicine such as acupuncture, homeopathy, naturopathy, chiropractic and osteopathic medicine, and other specialty centers. (e) "Responsible party": (A) Includes a person who has control or responsibility for the activities of health care personnel in a health care setting. (B) Includes a person who has control or responsibility for the activities within a health care setting. (C) Does not include an individual who hires, employs, or otherwise receives care from health care personnel in their own home. (7) A responsible party must: (a) Develop and follow a policy that requires all patients, residents, clients and visitors to wear a face covering except as provided in section (10) or other applicable provisions of this rule. (b) Develop and follow a policy that if a patient, resident or client cannot tolerate any form of face covering due to a medical condition, strict physical distancing of at least six feet be observed from other non-health care personnel to the greatest extent possible. (c) Require health care personnel to wear a face covering when entering, exiting and face mask while they are in the health care setting in accordance with the requirements of this rule. (8) Health care personnel must wear a face covering when entering, exiting and face mask while they are in a health care setting except as described in section (10) of this rule. (9) Patients, residents and clients must wear a face covering when entering, exiting, or in a health care setting except as described in section (10) of this rule. (10) A face covering is not required when the individual: (a) Is under five years of age. (b) Is sleeping. (c) Is actively eating or drinking. (d) Is engaged in an activity or receiving health care that makes wearing a face covering not feasible, such as receiving a physical examination of the throat or having dental work. (e) Is alone in a closed room. (f) Is a patient or resident in their designated room with their door closed. (11) Nothing in this rule is intended to prohibit an employer of healthcare personnel from making reasonable accommodations in order to comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, ORS 659.850 or applicable provisions of ORS chapter 659A. (12) Responsible parties and health care personnel who violate any provision of this rule may be subject to a civil penalty of $500 per day per violation. (13) In addition to the imposition of civil penalties under section (12) of this rule, a violation of this rule may also be grounds for a licensing action authorized under the following statutes or rules: (a) ORS 443.045; OAR chapter 333, division 27 (home health agencies). (b) ORS 443.864, 443.869; OAR chapter 333, division 35 (hospice programs). (c) ORS 441.030; OAR chapter 333, division 71 (special inpatient care facilities). (d) ORS 441.030; OAR chapter 333, division 76 (ambulatory surgical centers, extended stay centers and birthing centers). (e) ORS 441.030; OAR chapter 333, division 501 (hospitals). (f) ORS 443.325; OAR chapter 333, division 536 (in-home care agencies). (g) ORS 441.030; OAR chapter 333, division 700 (outpatient renal dialysis facilities). (h) ORS 426.415; OAR chapter 309, division 22 (psychiatric residential treatment facilities). (i) ORS 435.415, 443.421, 443.455; OAR chapter 309, division 35 (residential treatment facilities, community based residential treatment homes, secure residential treatment facilities). (j) ORS 443.745, 443.790; OAR chapter 309, division 40 (adult foster homes). Note: Go to https://www.oregon.gov/oha/covid19/Pages/Masks.aspx to view public health orders that may have been issued under section (2) of this rule.