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Volume XI, Number 217

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Oregon OSHA Finalizes Temporary COVID-19 Rule for All Workplaces

On November 6, 2020, the Oregon Occupational Safety and Health Administration (Oregon OSHA), the state plan responsible for overseeing workplace safety and health in the state of Oregon, released its final COVID-19 temporary rule. The temporary rule is effective November 16, 2020, through May 4, 2021, unless revised or repealed before that date.

The temporary rule sets forth requirements for all Oregon employers and supplementary requirements for “workplaces at exceptional risk.”

Requirements for All Oregon Employers

Physical distancing. A mandatory six-foot social distancing requirement applies to all workplaces. “[E]mployers must ensure that both work activities and workflow are designed to eliminate the need for any employee to be within 6 feet of another individual in order to fulfill their job duties unless … such physical distancing is not feasible for certain activities.” An employer can be excluded from this provision and other provisions only “if the employer can demonstrate that it is functionally impossible to comply or if doing so would prevent completion of the work.” The employer “must take any available reasonable alternative steps to protect the employees involved.”

Mask, face covering, or face shield requirements. Employers must ensure that all individuals (including employees, part-time workers, temporary laborers, customers, vendors, patrons, contractors, etc.) at the workplace or other premises subject to the employer’s control wear a mask, face covering, or face shield in accordance with the Oregon Health Authority’s (OHA) statewide guidance. The rule provides that “[c]overings that incorporate a valve that is designed to facilitate easy exhalation or mesh masks or other covers with openings, holes, visible gaps in the design or material, or vents are not appropriate face coverings (even if otherwise appropriate for respiratory protection) because they allow droplets to be released from the covering.”

Exposure risk assessment and infection control plan. By December 7, 2020, “all employers must conduct a COVID-19 exposure risk assessment” addressing certain questions related to potential employee exposure to COVID-19 in the workplace. The exposure risk assessment “must involve participation and feedback from employees” which may be achieved via a safety meeting, safety committee, supervisor, process negotiated with the exclusive bargaining agent (if any), or any other similar interactive process.” Also by December 7, 2020, “all employers must establish and implement an infection control plan based on the risks identified in … [the risk assessment],” including the controls identified by each employer in response to the final question on the risk assessment (“How can the employer implement appropriate controls that provide layered protection from COVID-19 hazards and that minimize, to the degree possible, reliance on individual employee training and behavior for their efficacy?”).

Employers with “multiple facilities that are substantially similar” may develop their risk assessments and control plans “by facility type rather than site-by-site so long as any site-specific information that affects employee exposure risk to COVID-19 is included in the plan.” Employers of workplaces at exceptional risk or employers with more than 10 employees statewide must record their exposure risk assessments and control plans in writing. Employers may use Oregon OSHA’s Risk Assessment template and Infection Control template to complete this task. Alternatively, employers who choose to develop their own risk assessments and infection control plans may want to review the temporary rule to ensure that all required information outlined in the rule is evaluated and recorded.

Employee information and training. By December 21, 2020, “employers must provide workers with information and training regarding COVID-19” that includes the following:

  • “Physical distancing requirements as they apply to the employee’s workplace and job function(s)”;

  • “Mask, face covering, or face shield requirements as they apply to the employee’s workplace and job function(s)”;

  • “COVID-19 sanitation requirements as they apply to the employee’s workplace and job function(s)”;

  • “COVID-19 signs and symptom reporting procedures that apply to the employee’s workplace”;

  • “COVID-19 infection notification process as required by [the] rule”;

  • “Medical removal as required by [the] rule”;

  • “The characteristics and methods of transmission of the SARS-CoV-2 virus”;

  • “The symptoms of the COVID-19 disease”;

  • “The ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the SARS-CoV-2 virus”; and

  • “Safe and healthy work practices and control measures, including but not limited to, physical distancing, sanitation and disinfection practices.”

Employers can provide training “remotely or using computer-based models” so long as the training is “provided in a manner and language understood by affected the workers.” Employers must also ensure that training “provides an opportunity for feedback from employees about the topics covered in the training.” An employer that has already provided training covering some or all of the topics mentioned above does not need to repeat the training for those covered topics. Oregon OSHA is expected to publish training materials that can be used to complete some portions of the required training, which will be available on the Infectious Disease Rulemaking page of the Oregon OSHA website once published.

Limitation on reasonable accommodation. Consistent with OHA guidance, Oregon OSHA’s rule states that a “reasonable accommodation for those unable to wear a mask, face covering, or face shield must be provided [and] … does not include simply exempting individuals from the requirement to wear masks, face coverings, or face shields in public spaces.” Employers may want to consider other reasonable accommodations to comply with state and federal disability and public accommodation laws.

Employer-provided masks and usage of respirators. Employers are required to “provide masks, face coverings, or face shields for employees at no cost to the worker.” If an employee chooses to wear a mask, face shield, or face covering when it is not required, the employer must allow the employee to do so. An employer may allow an employee to use his or her own mask, face shield, or face covering rather than the one provided by the employer, but it is not required to do so. If an employee chooses to wear a respirator with an exhalation valve, under the “voluntary use” provisions of the Respiratory Protection Standard (29 CFR 1910.134), “the employer must require that the appropriate source control be used”; otherwise, respiratory droplets and aerosols could spread from the wearer to others during exhalation.

Vehicle travel. “When employees are transported in a vehicle for work purposes, regardless of the travel distance or duration involved, all occupants in the vehicle must wear a mask, face covering, or face shield unless employees are wearing respirators in accordance with the Respiratory Protection Standard (29 CFR 1910.134),” as mentioned above. “This requirement does not apply when all occupants of the vehicle are members of the same household.”

Cleaning and sanitation. Employers “must regularly clean or sanitize all common areas, shared equipment, and high-touch surfaces … that are under its control and that are used by employees or the public.” The term “common areas” includes but is not limited to lobbies, reception areas, restrooms, and break rooms. “Shared equipment” includes but is not limited to elevators, escalators, and computer keyboards. If the workplace is occupied less than 12 hours a day, then such regular cleaning must occur at least once every 24 hours. If the workplace if occupied more than 12 hours a day, then such regular cleaning must take place at least every 8 hours while in use. For workplaces “with only ‘drop-in’ availability or minimal staffing, the employer is permitted to rely upon a regular schedule of cleaning and sanitation and directing employees to sanitize their own work surfaces before use.” Employers must also “clean and disinfect common areas, high-touch surfaces, and shared equipment under the employer’s control that an individual known to be infected with COVID-19 used or had direct physical contact with,” unless they have been “unoccupied or otherwise unused for seven days or more.”

Time and supplies for cleaning and hand hygiene. Employers must provide employees with the supplies (such as soap and water) for cleaning and hand hygiene. Employers must also provide “reasonable time necessary” for employees to clean and sanitize, and, for those employees using shared equipment, to perform hand hygiene before using such equipment.

Posting requirements. Employers must post Oregon OSHA’s COVID-19 Hazards Poster “in a conspicuous manner in a central location [in the workplace] where workers can be expected to see it.” Employers must also provide copies of the poster to employees who are working remotely “through electronic or equally effective means.”

Building operators. This provision of the rule requires “employers that operate or otherwise control buildings where the employees of other employers work” to ensure that common areas are appropriately sanitized and signs are posted “in areas where masks, face coverings, or face shields are required.” Building operators may post copies of the Masks Required” sign developed by OHA to comply with the rule.

Ventilation requirements. By January 6, 2021, employers must “optimize the amount of outside air circulated through its existing heating, ventilation, and air conditioning (HVAC) system(s), to the extent the system can do so when operating as designed, whenever there are employees in the workplace and the outdoor air quality index remains at either ‘good’ or ‘moderate’ levels.” Employers must also “ensure the proper function [and performance] of the ventilation system” by maintaining and replacing air filters and cleaning “[a]ll intake ports that provide outside air to the HVAC system.” Employers are not required to install new ventilation equipment to comply with the rule. Employer ventilation does not have to meet the requirements of the American National Standards (ANSI)/American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standards 62.1 and 62.2, but compliance with those consensus standards will likely be deemed compliance with this provision of Oregon OSHA’s temporary COVID-19 rule.

COVID-19 infection notification process. An employer “must establish a process to notify exposed employees (those who were within 6 feet of a confirmed COVID-19 individual for a cumulative total of 15 minutes or more, regardless of whether one or both of them were wearing [a mask]) that they had a work-related contact with an individual who has tested positive for COVID-19.” Employers must also provide notice to “affected employees (those who worked in the same facility or in the same well-defined portion of the facility such as a particular floor) that an individual who was present in the facility has confirmed COVID-19.” This notification process must include the following elements:

  • “A mechanism for notifying both exposed and affected employees within 24 hours of the employer being made aware that an individual with COVID-19 was present in the workplace while infectious or otherwise may have had work-related contact with its employee(s) while infectious”; and

  • “This notification process must be established and implemented in accordance with all applicable federal and Oregon laws and regulations.”

“Employers can satisfy this requirement by adopting [Oregon OSHA’s] model procedure” or developing their own policy.

COVID-19 testing for workers. “[W]henever a local public health agency or [OHA] indicate that COVID-19 diagnostic testing within the workplace is necessary,” an employer “must cooperate by making its employees and appropriate space available at no cost to the workers.” If an employer elects to conduct its own testing, “the employer is responsible for covering the costs of testing including but not limited to the COVID-19 test itself, employee time, and employee travel.”

Medical removal. If the OHA, a local public health agency, or a medical provider “recommends an employee be restricted from work due to quarantine or isolation for COVID-19” the temporary rule requires the employer to direct the affected employee “to isolate at home and away from other non-quarantined individuals.” During the employee’s participation “in quarantine or isolation for COVID-19, the employer must allow the affected employee[] to work at home if suitable work is available and the employee’s condition does not prevent it.” The affected employee is also “entitled to return to their previous job duties if still available and without any adverse action.” Nonetheless, an employer is not required “to keep a job available that would not otherwise have been available even had the employee not been quarantined or isolated.” Employers do not need to record such “medical removal” cases on their Occupational Safety and Health Administration (OSHA) 300 log(s) unless the infection of a worker is determined to be “work-related” under the administrative rules.

Mandatory appendices. “Employers covered by one or more of the [temporary rule’s] mandatory industry-specific and activity-specific appendices that make up Appendix A of [the] rule must comply with those appendices.” The appendices are available here. The appendices cover the following industries and activities, among others:

  • Restaurants, bars, brewpubs, and certain public tasting rooms;

  • Retail stores

  • Outdoor/indoor markets

  • Personal services providers

  • Construction operations

  • Indoor and outdoor entertainment facilities

  • Outdoor recreation organizations

  • Fitness-related organizations

  • Fire service and emergency medical services (EMS)

  • Law enforcement

Supplementary Requirements for Oregon Workplaces at Exceptional Risk

Employers may want to evaluate which category their employees fall under in order to best comply with the rule. “‘Workplaces at exceptional risk’” include any setting (whether a healthcare setting or not) where an employee (including temporary and part-time employees) performs one or any combination of the following job duties”:

  • “Direct patient care”;

  • “Environmental decontamination services in a healthcare setting”;

  • Aerosol-generating healthcare or postmortem procedures”;

  • “Direct client service in residential care or assisted living facilities”;

  • “Emergency first responder activities”;

  • “Personal care activities that involve very close contact with an individual, such as toileting or bathing”; or

  • “Handling, packaging, cleaning, processing, or transporting human remains or human tissue specimens or laboratory cultures collected from an individual known or suspected to be infected with COVID-19.”

“[W]orkers of other departments or job duties outside the scope” of the above-mentioned duties are not considered to be at “exceptional risk” and are only subject to the requirements applicable to all Oregon workplaces. A separate article will be published exploring the supplemental requirements for Oregon workplaces at exceptional risk.

Key Takeaways

In sum, the rule requires that employers:

  • follow the temporary rule’s requirements and appendices for social distancing, masks, face coverings, face shields, cleaning and sanitation, and vehicle travel;

  • post the Oregon OSHA COVID-19 Hazards Poster and provide a copy to remote employees;

  • develop a COVID-19 infection notification process;

  • comply with the medical removal and job protection requirements;

  • complete the exposure risk assessment and infection control plan by December 7, 2020;

  • provide employees with COVID-19 information and training by December 21, 2020; and

  • evaluate ventilation systems by January 6, 2021, and maintain the same, if applicable.

Employers may also want to address employee concerns and complaints relating to this temporary rule, keeping in mind that employees who oppose any practice forbidden under the Oregon Safe Employment Act and the COVID-19 temporary rule may be protected from discrimination and retaliation.

The following two key changes depart from earlier drafts of the temporary standard:

  • Earlier drafts of the emergency rule required Oregon employees to provide paid leave to employees on “medical removal.” After business stakeholders raised questions over Oregon OSHA’s legal authority to implement such a requirement, Oregon OSHA took a step back and removed the paid leave provisions from the final rule.

  • Earlier drafts also initially required company vehicles to maintain four feet of spacing between all employees in a vehicle (except immediate family members). After realizing this would perhaps eliminate the use of most company trucks and vehicles, few of which have four feet of space between the driver and passenger seats, Oregon OSHA removed this provision from the final rule.

 

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 339
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About this Author

Paul Cirner Employment Lawyer Ogletree
Associate

Paul is an associate in our Portland, Oregon office focusing on employment litigation and counseling.

Paul advises employers to ensure compliance with the ever-changing framework of labor and employment laws. As a litigator, Paul is skilled at vigorously defending his clients and working with opposing counsel to reach favorable resolutions when warranted.

Prior to joining Ogletree, Paul gained extensive experience as an associate with an international law firm defending clients throughout the New York metropolitan area...

503-552-2140
John Martin, Ogletree Deakins Law Firm, Employment Law and Energy Litigation Attorney
Shareholder

John Martin focuses his practice on occupational safety and health compliance and litigation. He serves as national OSHA counsel for three publicly-traded companies, and has over 15 years of experience in defending employers in federal court and before the Occupational Safety and Health Review Commission (OSHRC). John has defended clients in 18 states and counsels clients on developing safety programs to eliminate and reduce workplace injuries.

202-263-0267
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