On April 30, 2021, the Oregon Occupational Safety and Health Administration (Oregon OSHA) issued a “permanent” rule on COVID-19 Workplace Requirements for Employer-Provided Labor Housing (OAR 437-004-1115). This is in addition to Oregon OSHA’s other new “permanent” rule for workplaces (as opposed to worker housing), Addressing COVID-19 Workplace Risks (OAR 437-001-0744), reported separately in today’s newsletter. The new employer-provided housing rule replaces a temporary rule on which we previously reported, as well as an executive order by Governor Kate Brown that extended the employer-provided housing portion of the temporary rule. The permanent rule keeps many provisions from the temporary rule and the executive order, but there are also some new provisions. Major parts of the permanent rule – both new and carried over – are described below.
Effective Date. The permanent rule became effective April 30, 2021, the same day Oregon OSHA published it. The rule is considered “permanent” because it has no set expiration date, but Oregon OSHA said it will repeal the rule when it is no longer necessary to address the COVID-19 (coronavirus) pandemic, in consultation with the Oregon Health Authority (OHA) and other stakeholders.
Covered Employers and Applicability. The rule applies to any employer that provides housing to its workers, either directly or through an agent (e.g., a labor contractor). The requirements apply to both agricultural and non-agricultural employers. Labor contractors (e.g., farm labor contractors) and other people or companies who recruit workers for employers are considered “employers” for purposes of this rule to the extent they also house those workers. The rule applies regardless of whether employers (or their agents) charge rent for the housing. The rule doesn’t apply to licensed hotels or motels that offer some of their publicly available rooms to workers; manufactured home and recreational vehicle parks (i.e., mobile home parks where people live of their own choosing); or manufactured homes or dwellings that are moved regularly from place to place for work, as long as they’re stationed in parks or camps otherwise open to the public.
Physical distancing. As a covered employer, you must appoint one or more “monitors” to ensure appropriate physical distancing and sanitation measures in employer-provided housing. You must ensure the limitation of non-essential visitors in common use areas; the use of appropriate physical distancing during mealtimes, including encouraging occupants to eat meals outside if safe to do so; and the arrangement of furniture, including in dining areas, so people maintain at least six feet of distance between one another. You must also choose between one of two options to maintain physical distancing between occupants in sleeping quarters:
- Air Purification Method: You must ensure at least six feet of distance from the center point of a single-occupant bed; ensure a particular square-footage of floor space per occupant in a sleeping room, with the amount of space depending on whether the occupants are using bunk beds and are related or part of the same household; and provide air purifiers equipped with HEPA filters (among other filtration device requirements) for each room where people sleep.
- Additional Capacity Reduction Method: You must ensure beds or cots are spaced at least six feet apart between frames in all directions and are arranged so occupants in beds alternate from head to toe; and must ensure a particular square-footage of floor space per occupant in a sleeping room, with the amount of space depending on whether the occupants are using bunk beds and are related or part of the same household.
Ventilation. You must ensure that existing ventilation systems in employer-provided housing are optimized in accordance with Oregon OSHA’s permanent rule for workplaces, Addressing COVID-19 Workplace Risks. (Those ventilation standards are found at OAR 437-001-0744(3)(f)). You must also increase air circulation and ventilation by opening windows and doors in labor housing when doing so is safe for the occupants, taking into account weather conditions, pesticide application, and other potential hazards, while at the same time restricting the use of fans indoors except when doors and windows are open.
Sanitation. You must regularly clean or sanitize all common areas, shared equipment, and high-touch surfaces. You must clean and sanitize units prior to new occupancies. You must fumigate sleeping mattresses or pads or treat them with an effective insecticide before each season’s occupancy and whenever the mattress or pad is assigned to a new user. At least daily, you must sanitize the bathing, hand-washing, and toileting facilities, if used. You must provide adequate cleaning materials at no cost to allow for such cleaning, including if the occupants wish to clean and sanitize more than is required by the rule. You as an employer are discouraged from entering units unless necessary, and therefore may assign occupants to sanitation duties, but you must treat such work as a “work assignment” and pay occupants for the time worked.
Masks, Face Coverings, and Face Shields. You must ensure that all persons entering labor housing, including all common areas, wear a mask, face covering, or face shield in accordance with the OHA’s Statewide Mask, Face Covering, and Face Shield Guidance. A few exceptions apply: when eating or drinking during mealtimes; when sleeping in beds or cots; when wearing one isn’t feasible, such as during teeth brushing or bathing; in a housing unit or area occupied solely by members of the same family or household; or when a person is less than five years of age. You must provide occupants with masks, face shields, or face coverings, including enough to allow employees to “double mask,” without cost to the occupants.
Transportation. When you provide employees with transportation for work purposes, you must generally comply with the relevant provisions of Oregon OSHA’s rule, Addressing COVID-19 Workplace Risks. For non-employer-provided transportation for labor housing, to the extent such transportation is within your control as the employer (i.e., whether it’s provided by you or your agent), you must ensure the same standards as in that rule. For employees who commute to and from the worksite with individuals outside their household (i.e., in their own vehicles), you must advise employees of the risks presented by such close contact with people outside their households, and must encourage them to employ practices similar to those detailed in the workplace rule, Addressing COVID-19 Workplace Risks.
COVID-19 Response Plan. You must take certain steps related to suspected or confirmed COVID-19 cases to prevent the spread of COVID-19 in employer-provided housing. You must encourage occupants with suspected COVID-19 to seek advice from a health care provider via mobile device or telephone to determine whether further in-person evaluation is needed. You must also ensure such occupants are isolated with sleeping, eating, and bathroom accommodations that are separate from non-isolating occupants, and, if necessary, are taken care of by only one person in the household. Similarly, you must ensure confirmed COVID-19-infected occupants are isolated and housed only with other confirmed cases; have separate bathroom, cooking, and eating facilities from people who have not been diagnosed with COVID-19; and, if necessary, are taken care of by only one person in the household. In the case of either suspected or confirmed COVID-19 cases, if isolation isn’t possible, you must follow the OHA’s Statewide Isolation and Quarantine Guidance. You must thoroughly clean and sanitize beds, bathrooms, or common areas previously used by individuals suspected or confirmed to have COVID-19 before they’re used by other individuals.
Interaction with Other Laws: As a covered employer, you must still generally comply with Oregon OSHA’s permanent rule for workplaces, Addressing COVID-19 Workplace Risks. However, this new labor housing rule supersedes the workplace rule with regard to masks, face coverings, and face shields, cleaning and sanitation, and ventilation, to the extent the two laws conflict. Agricultural housing is already subject to certain regulations under OAR 437-001-0744; this new rule supersedes those regulations in areas where the two conflict, but otherwise those older regulations remain in effect.
Tips: Read the new rule carefully if you provide your employees with housing (or contract with a person or entity providing labor housing). The rule allows you to assign housing occupants to certain tasks required by the rule, including as a “monitor” and for maintaining proper sanitation inside units, but you must consider such tasks work assignments and pay occupants as workers for their time. If you have questions about the new rule, contact your Vigilant safety professional.