“These Communities May Reduce but Not Eliminate Their Risk”: Oregon’s Discriminatory COVID Policies

“These Communities May Reduce but Not Eliminate Their Risk”: Oregon’s Discriminatory COVID Policies 

 

A. Smith

 

It seems that Oregon has largely gotten out of the COVID-19 business. Throughout much of the pandemic, Oregon has touted its pandemic policies and often had a more expansive COVID-related approach than many states, but did not always protect higher-risk people. Oregon has recently adopted Trumpian public health policies at odds with the CDC, most states, and its own earlier policies, putting disabled people and people of color at further increased risk of severe illness or death. 

In May, with the end of the public health emergency (PHE), Oregon removed its five-day isolation period. Incorrectly claiming that there is “widespread population immunity due to vaccination and repeated infections” and that “the five-day isolation period is doing little to reduce transmission,” the state has changed to a symptoms-based isolation approach. Oregon’s changes hit me hard as an immunocompromised and physically disabled Oregonian, because Oregon’s public health policies act as though disabled people don’t have a right to participate in society without increased risk, despite state and federal laws that say otherwise. 

Oregon is now allowing asymptomatic and presymptomatic people with COVID to go to school, only requiring people with symptoms to stay home; the Oregon Health Authority (OHA) has said that they are approaching COVID through “response plans consistent with responses to other common infections,” although many COVID-positive people do not have symptoms and can still spread COVID. Oregon has also made new COVID cases no longer reportable. The state tells COVID-positive people to consider wearing a mask for 10 days and to “Avoid contact with people at high risk of severe illness,” as though more vulnerable Oregonians are somehow a separate group who do not attend school, go to work, or engage in other areas of life, rather than people who have an equal right to access public spaces under the Americans with Disabilities Act (ADA). 

Of course, Oregon’s allowance of COVID-positive people at school does not correspond with the CDC’s isolation guidance for all people with COVID to isolate for at least five days. It also does not match the guidance of neighboring states California and Washington, who Oregon has previously coordinated with on COVID-19 policies. I don’t think most Oregonians are aware of Oregon’s new approach, and the policies are an unnecessary attempt to further “normalize” COVID. The state is actively choosing new, harmful, eugenic policies at odds with public health principles when it could simply passively say COVID-positive people should stay home even if the state wants to divest from COVID. 

To solidify Oregon’s changes within Oregon’s administrative rules, Oregon recently proposed to remove COVID-19 from its state list of restrictable diseases that requires people to stay home while infectious, which also includes diseases such as chickenpox, measles, and infectious tuberculosis. Permanently removing COVID-19 as a restrictable disease in schools, childcare, and food services would also weaken associated protections. Oregon is already treating COVID as a non-restrictable disease, even though OHA’s own COVID-19 Interim Investigative Guidelines say that people with COVID “should be aware of their potential to infect others around them.” 

The new school policy means that immunocompromised and other disabled and high-risk students and teachers are now going to school with people with known COVID, and that Oregon expects them to do so going forward without consideration for mitigation measures like universal masking or acknowledgment of the impacts on equity and accessibility. This is as Oregon is experiencing a surge with many children getting sick at the start of the school year. The policy puts high-risk students at further increased risk of severe illness and death from attending school and impedes disabled students’ access to a free appropriate public education (FAPE) as required by Section 504. 

The Oregon Department of Education (ODE) and OHA are defending the decision. In an email reply to advocacy letters, the new Director of ODE said, “Knowing that the five-day exclusion does little to reduce transmission, we do know that missing five days of school has a detrimental impact on a student’s learning, and more so on that student if they depend on school for nutrition, warmth, safety and belonging.” This statement creates a false dichotomy, framing advocates as wanting to keep kids away from school rather than acknowledging that Oregon requires students with other restrictable diseases to stay home.  It ignores that allowing people with COVID at school puts every student at increased risk of Long COVID, and that according to the CDC, 50% of children who died from COVID this last year had no underlying conditions. It especially ignores the existence of disabled children, that allowing COVID-positive students at school makes it so disabled students cannot safely access their education at all. 

The acceptance of OHA’s policy by ODE, districts, schools, and others highlights the disconnect that many people have on equity and COVID. The first section in the state’s Communicable Disease Guidance For Schools is on equity, even explicitly stating the outsized impact of COVID on marginalized communities, and yet the guidance removed COVID from its cited restrictable diseases. The state’s recent proposed rulemaking also repeals the rule on data collection on race, ethnicity, language, and disability for COVID due to the end of a legislative statute. OHA has established a goal to remove health inequities by 2030 but eliminated the five-day isolation period. COVID-related issues are regularly not viewed within the lens of equity, nor is the loss of equity in relation to weaker COVID policies seen as a concern. 

Yet, the state knows the disproportionate harms of COVID. Although OHA wrote in a required rulemaking statement on racial equity that removing COVID as a restrictable disease was “housekeeping and should not have racial or ethnic impacts,” in the paragraph preceding, OHA cited shattering statistics that children of color have died of COVID at higher rates than white children in Oregon. In an earlier internal memo from a public records request, OHA stated: “Rescission of universal masking and healthcare and K-12 vaccination rules will have a greater impact on those populations at increased risk of severe disease – communities of color, tribal communities, rural communities, economically segregated communities, those with underlying medical conditions, the elderly and infants, among others. These communities may reduce but not eliminate their risk of severe disease through masking and vaccination” (1). The state recognizes there’s a disproportionate impact, but they treat it as an acceptable impact.

In September, OHA held a public hearing to discuss the proposed removal of COVID from the restrictable diseases list. The forum was for public testimony without response, providing a platform for people to tell OHA staff about the state’s harmful policies without minimizing replies. Testimonies included disabled Oregonians, a parent, a substitute teacher, and a child psychotherapist, and all testimonies provided were in favor of keeping COVID as a restrictable disease. Common themes were the disproportionate harms of COVID; high levels of illness circulating in schools and the associated effect on community transmission; how the policy actually increases absences; and that five days is an isolation minimum. In an advocacy success, after extensive advocacy from hundreds of individuals submitting public comments, OHA recently decided to “remov[e] this change from the current rulemaking and leav[e] COVID-19 as a restrictable disease…in the final rules that will be adopted” (2). This is fantastic news, and it allows for common sense policies to remain in place officially in state rules. I’m guessing that at the present time, OHA may continue to treat COVID as it is currently, as being no longer restrictable in practice even though it is restrictable in state rules, due to the Oregon’s COVID-19 investigational guidelines. The decision, however, provides a more solid base and future advocacy opportunities for COVID mitigations. 

Seeking to remove COVID-19 as a restrictable disease is not the first change that Oregon has done quietly, nor the first where political motivations and impacts have been minimized while disabled people highlight the immense risks. OHA wrote in an internal memo that incorporating boosters into state vaccine requirements was “likely politically infeasible;” the state has since removed healthcare worker and school staff COVID vaccine requirements (3). Instead of reinstating mask mandates during the 2022-23 winter respiratory season, OHA ran testing on messaging for encouraging mask-wearing. They wrote in December 2022 that people were much more likely to wear masks when based on hospital capacity concerns and for children’s safety, but not when asking families to have kids wear masks at school, and that “Messages that asked people to wear masks to protect older adults and people who are vulnerable did not produce any statistically significant increase” (4). That’s difficult each time I read it, because it puts into words what I have felt and known throughout the pandemic – many people don’t see keeping disabled and older people safe as reason enough to reduce community risks. It’s devastating, too, for the state to poll the public on the motivation towards wearing masks instead of putting in place needed mitigations for vulnerable people. 

Public records show that while Oregon framed removing mask requirements in healthcare as an OHA decision based on specific criteria (5), Governor Tina Kotek made the decision during a March 2023 meeting with OHA and her office was aware that Oregon did not yet meet internally determined OHA criteria even though the rule on masking in healthcare states that masking is in place “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.” (OHA released the official public health order). Upon lifting healthcare mask requirements in April, Oregon cited a test positivity rate below 10% for two weeks as the main COVID-specific justification, a high test positivity threshold that Oregon did not meet until at least the week after the announcement in March. Oregon’s test positivity has now remained above that threshold for the last two months, but Oregon has not reinstated masks in healthcare. 

Records also show that the decision to lift masks around that time had been made in at least December 2022, and that when presented with data the day before the OHA meeting that showed criteria was not yet met, the Governor’s Office was “nervous we are going to get significant push back if we hold the line once again” (6). After the meeting, the state planned for the announcement to come from OHA and the Governor’s Office, and late-night drafts the evening before included the Governor’s Office on the press release (7). However, early on the morning of the announcement, OHA’s Communications Director sent an email saying, “The Governor’s Office has reconsidered who should send the news release announcing the end date for masking in health care facilities. They would like OHA to send this release at 8:00 AM this morning to coincide with WA’s similar announcement” (8).  

Oregon’s approach resulted in many Oregonians viewing the removal of masks as a health-based decision rather than a political one, similar to other points of the pandemic – that if OHA says it’s okay, it must be safe. Better transparency on the political motivations behind many of Oregon’s public health decisions would allow more Oregonians to determine whether it’s safe (it’s not) to stop wearing masks in healthcare. What do you do when it’s the government often promoting the misinformation that you have to fight against?

The state’s presentation of politically-connected policies as public health fact also makes it harder to advocate for protections with state agencies such as ODE, state senators and representatives, and relevant organizations. The state told many decision makers and stakeholders this spring that the public health changes were sound principles and that isolation no longer prevents transmission (9). In a presentation to school leaders in August, an OHA staff member said “it does look like the virus is becoming less severe over time” due to “broad population immunity,” which is simply not true. This makes it harder to advocate, and it is uphill advocacy for something so common sense.

Another overall concern is how Oregon’s policies may negatively inform those of other states and/or increasingly represent parallel attempts to further weaken COVID mitigations. Dr. Noha Aboelata recently tweeted that California has updated its school guidance to allow people with COVID symptoms to attend school. California’s new school symptoms document includes somewhat buried language that schools should continue to follow specific policies for COVID, but it does not provide an immediate link to what those policies are. Instead, the document includes a chart with graphics on different symptoms, listing that a student “May attend school or child care” in most cases for cough and cold symptoms, sore throat, conjunctivitis, stomach concerns, or other symptoms connected to recent COVID-19 variants. A graphic signifies that with some symptoms, “masks should be considered…to lower the chances of getting others sick.” The new guidance does not seem to mention or encourage testing when symptomatic. The updated guidance feels like a de facto permission for kids with COVID symptoms to go to school, to the detriment of disabled students and teachers. It’s not clear whether California’s Department of Public Health has had conversations on school policies with Oregon and/or other states or if this is arising independently in connection with situations like the Los Angeles Unified School District encouraging sick kids to come to school, but it provides similar concerns as Oregon’s policy changes and further weakens societal expectations when sick.

For leaders and officials, these are political decisions, but disabled people have to live with the significant impacts each day. Inequitable, ableist decisions impede access to public life, having to request and fight for accommodations for simple things such as getting curbside and major things such as healthcare and education. They create a hostile environment where people requesting accommodations or wearing masks in public may be subject to harassment, discrimination, and more. To the Governor and OHA, the state’s decisions provide a political cover and release a sense of duty over addressing COVID; to disabled people, many of us have far narrower lives at this point of the pandemic, due not fully as much to COVID but to structural decisions. This extends throughout the US, where many disabled people have not had protective state laws for much of the pandemic and high-risk people face the continuing reversal of public health. It feels as though the United States has experienced a significant rolling back of disability rights, with few nondisabled “allies” recognizing or advocating for disability justice. COVID-19 is an invisible cause in the US. 

The decisions of states like Oregon and of the federal government are forcing us to advocate more and more for less and less. We have advocated for disabled people to have equal access to lifesaving measures, masks, tests, a ten-day isolation period, effective CDC transmission levels, for the President to still call the pandemic a pandemic, data, PCRs, and a PHE. And now, we’re advocating for people with COVID to stay home while infectious, and we’re having to vigorously fight for these basic protections, as much as we can, dedicating one’s small windows of energy to explaining why disabled people have the right to go to school and be in public places, actually. Oregon needs to put back in place at least a five-day isolation for everyone with COVID, and it needs to listen to disabled Oregonians. Doing so will improve its public health and will ensure a more equitable and sustainable future for everyone. 

Endnotes

The following sources are from public records requests for the Oregon Governor’s Office, Oregon Health Authority, and Oregon Department of Education. 

1. Oregon Health Authority, “Public Health COVID-19 Masking and Vaccination Rules,” OHA 4354 (10/28/2022), memo from a public records request. 
2.  Oregon Health Authority email, 23 October 2023.
3. Oregon Health Authority, “Public Health COVID-19 Masking and Vaccination Rules,” OHA 4354 (10/28/2022), memo from a public records request.
4. 7 December 2022, Sidelinger to Fehrenbach and Kwan-Gett, email.
5. 1 March 2023, Cooper to Thomas, email; 28 February 2023, Currans-Henry to Banks, email; 28 February 2023, Currans-Henry to Pierce, Banks, and Schroeder, email.
6. 28 February 2023, Currans-Henry to Pierce, Banks, and Schroeder, email.
7.  2 March 2023, O’Brien to Do, email; 2 March 2023, Do to Cowie, email.
8. 3 March 2023, Cowie to Hakes and Honeyman, email.
9. 2 May 2023, Currans-Henry to Cooper et al, email.

ABOUT

 

 

A. Smith is an immunocompromised and mainly bedbound Oregonian who is a historian by training. She has extensive experience with primary source research and has received awards for her writing. 

 

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