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Nov 12, 2020

OREGON: Oregon OSHA releases new COVID-19 workplace rule

COVID-19Safety and Health 

On November 6, 2020, the Oregon Occupational Safety and Health Administration (Oregon OSHA) released its long-awaited temporary rule on “Addressing COVID-19 Workplace Risks.” The new rule applies to all employers in the state of Oregon, with additional requirements for certain employers depending on size, work performed, and industry. Under the rule, employers must develop and implement certain baseline safety protocols to prevent the spread of COVID-19 (coronavirus) in the workplace, including an exposure risk assessment and infection control plan; communicate those protocols to employees in various ways; and (for many employers) document those protocols in writing. Among other elements, the new rule contains training requirements, procedures for removing COVID-19-infected workers, and job protections for removed workers. Oregon OSHA is expected to be flexible with employers while they adjust to compliance with the rule, but employers who violate the rule may be subject to citations and penalties. All Oregon employers are required to comply with the new rule, regardless of whether they’ve already implemented face-covering requirements or other safety practices related to COVID-19. Some employers will only be subject to certain parts of the rule, and certain parts of the rule become effective on different dates, beginning November 16, 2020. Once effective, the rule remains in effect until May 4, 2021.

The first section below describes the different categories of employers covered by the rule. Employers must first understand what category or categories they fall into so they know how much of the rule is applicable to their locations. The remaining sections summarize the rule’s requirements in chronological order of effective dates by which employers need to be in compliance.

All employers: All employers in the state of Oregon are covered by a substantial part of the rule and must comply with certain baseline requirements (described below).

Employers with more than 10 employees: All employers with more than 10 employees (including part-time and temporary workers) statewide must comply with the baseline requirements, plus supplemental requirements. The supplemental requirements essentially include documenting, in writing, all the protocols required by the rule, and employee training.

Exceptional risk workplaces: “Exceptional risk workplaces” include, but aren’t limited to, any setting where an employee performs direct patient care, aerosol-generating healthcare procedures, or direct client service in residential care or assisted living facilities. Exceptional risk workplaces (regardless of their size) must comply with baseline requirements, plus the supplemental requirements required of ordinary employers with more than 10 employees, and additional supplemental requirements for exceptionally risky work. The rule’s “exceptional risk” requirements may apply to particular departments or workers within a workplace if those departments or workers perform relevant job duties that qualify them for the “exceptional risk” category, but may not necessarily apply to an entire organization. For example, nurses at a hospital are “exceptional risk” because they provide direct patient care; accountants at a hospital aren’t, because they don’t perform relevant job duties within the “exceptional risk” category.

Special industries: The rule also contains special supplemental requirements (in Appendix A of the rule) that apply only to employers in particular industries, such as restaurants, retail operations, and educational institutions. Employers in those categories must comply with both the applicable requirements in the main text of the rule (“all,” “more than 10,” or “exceptional risk,” depending on size and worker duties) and the additional requirements in the relevant appendix.

Posting requirements: All employers must display Oregon OSHA’s “COVID-19 Hazards Poster” (available in English and Spanish) in a conspicuous manner in a central location where workers can be expected to see it. If employees are working remotely, you must provide them with a copy of the poster electronically or by equally effective means.

Physical distancing: All employers must ensure that both work activities and workflow are designed to eliminate the need for employees to be within 6 feet of one another, unless you as the employer can demonstrate that such physical distancing isn’t feasible for certain activities. Workflow includes motions such as individuals passing each other in hallways or common areas when engaged in non-routine activities, such as going to the bathroom or breakroom.

Mask, face covering, or face shield requirements: All employers must ensure that all individuals (including employees, vendors, customers, visitors, 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 (OHA) Statewide Mask, Face Covering, Face Shield Guidance. (Remember, as we previously reported, the OHA now discourages the use of face shields alone except in very limited situations.) You may allow reasonable accommodations for not wearing such controls, but only under applicable federal or state law (e.g., the Americans with Disabilities Act). You must provide employees with masks, face coverings, or face shields at no cost to the workers. You may but aren’t required to allow workers to wear their own face coverings, as long as they comply with OHA guidance. You must allow workers to wear respirators under the “voluntary use” provisions of the Respiratory Protections standard (at 29 CFR 1910.134), but must also require such workers to use additional source controls (e.g., a face covering) if the employee voluntarily uses a respirator with an exhalation valve. (See our Model Form, Respirators: Requirements for Voluntary Use.) If an employee chooses to wear a mask, face shield, or face covering even when it isn’t required, you must allow it. When employees are transported in a vehicle for work purposes, regardless of travel distance or duration, all occupants in the vehicle must wear a mask, face covering, or face shield, unless all occupants are members of the same household.

Cleaning and sanitation: All employers must regularly clean or sanitize all “common areas” (e.g., lobbies, smoking areas, or conference rooms), “shared equipment” (e.g., keyboards, elevators, or work vehicles), and “high-touch surfaces” (e.g., doorknobs, light switches, handrails, elevator control panels, or steering wheels). If the workplace is occupied fewer than 12 hours per day, you must clean such surfaces at least once every 24 hours. If the workplace is occupied more than 12 hours per day, you must clean such surfaces at least every 8 hours while in use. You must provide employees with the supplies and the reasonable time necessary to clean or sanitize more frequently if the worker chooses to do so. You must provide employees with the supplies and reasonable time necessary to perform hand hygiene before using shared equipment. You must clean and disinfect any common areas, high-touch surfaces, and any shared equipment that an individual known to be infected with COVID-19 used or had direct physical contact with; Oregon OSHA recommends closing off the area and waiting 24 hours, or as long as feasible, before doing so.

Additional cleaning and sanitation for exceptional risk workplaces: Exceptional risk workplaces must develop procedures for routine cleaning and disinfection that are appropriate for preventing transmission of the virus in healthcare settings, such as using EPA-registered, hospital-grade disinfectants. Exceptional risk workplaces must also follow standard practices for disinfection and sterilization of medical devices contaminated with COVID-19 as described in the CDC Guideline for Disinfection and Sterilization in Healthcare Facilities.

COVID-19 infection notification process: All employers must establish a process to notify employees who were exposed to COVID-19 or affected by a COVID-19 exposure. “Exposed employees” are those who were within 6 feet of an individual with a confirmed COVID-19 case for a cumulative total of 15 minutes or more, regardless of whether one or both of them were wearing a mask, face covering, or face shield. “Affected employees” are those who work in the same facility or same well-defined portion of a facility (such as a particular floor) in which there was an individual with confirmed COVID-19. The rule applies not only if the individual with a confirmed COVID-19 case is a fellow employee, but to any individual with a confirmed COVID-19 case who was present at the workplace while infectious (e.g., a customer, vendor, or visitor). The notification process must: (1) include a mechanism for notifying both exposed and affected employees within 24 hours of the employer being made aware that a confirmed COVID-19 individual was present in the workplace while infectious; and (2) comply with all applicable federal and Oregon laws and regulations (e.g., protecting individuals’ medical privacy and confidential information). Oregon OSHA stated it will release a compliant model procedure prior to the effective date. This part of the rule doesn’t affect your other reporting obligations under existing OHA rules, recording obligations on the OSHA-300 Log, or reporting obligations for work-related cases of COVID-19 resulting in inpatient hospitalization or death.

COVID-19 testing for workers: Whenever the OHA or a local public health agency indicates that workplace COVID-19 diagnostic testing is necessary, all employers must cooperate by making their employees and appropriate space available at no cost to the workers. As the employer, if you request and conduct testing you must cover the costs, including but not limited to the COVID-19 test itself, employee time, and employee travel. You aren’t expected to cover such costs if you’re not requesting the tests.

Medical removal (including job protection): Whenever the OHA, a local public health agency, or a medical provider recommends an employee be restricted from work to quarantine or isolate due to COVID-19, all employers must direct the affected worker(s) to isolate at home and away from other non-quarantined individuals. The rule specifically states that employers aren’t responsible for employees’ activities outside the workplace, but that employers are obligated to provide direction about appropriate isolation. Employers must allow the affected worker(s) to work from home “if suitable work is available and the employee’s condition does not prevent it.” You must allow affected worker(s) to return to their previous job duties if still available and without any adverse action as a result of participation in COVID-19 quarantine or isolation activities. The rule states that employers don’t have to keep a job available that wouldn’t otherwise have been available even had the employee not been quarantined or isolated, but it does mean you cannot permanently fill the job with another employee.

Exceptional risk workplaces – additional requirements: Exceptional risk workplaces should thoroughly review Section 4 of the rule for additional requirements related to personal protective equipment (PPE) as it relates to direct patient care (Section 4(e)); barriers, partitions, and airborne infection isolation rooms (Section 4(g)); screening individuals for COVID-19 symptoms (Section 4(h)); and medical removal provisions (Section 4(i)).

Special industries – mandatory appendices: Employers in special industries (including but not limited to restaurants, retail operations, and educational institutions) must comply with the additional requirements for particular industries listed in Appendix A of the rule.

Exposure risk assessment: All employers must conduct a COVID-19 exposure risk assessment, which includes answering 21 specific questions about COVID-19 prevention protocols employers have implemented in the workplace, many of which are described above (see Section 3(g)(C) of the rule). Employers with more than 10 employees and exceptional risk workplaces must record the exposure risk assessment in writing, including the name, job title, and contact information of the person conducting the assessment; the assessment completion date; the employee job classifications evaluated in the assessment; and answers to each of the specific questions required for the assessment. Employers required to record the assessment in writing may use Oregon OSHA’s model Exposure Risk Assessment Form, which contains all the required questions. Keep the written assessment on file with other safety-related documents. The requirement for a written assessment essentially means that you need to document (in writing) most of the protocols described above in the “November 16” section of this article, since the questions required by the assessment relate specifically to those protocols. The exposure risk assessment itself must involve participation and feedback from employees, which may be achieved via a safety meeting, safety committee, supervisor discussions, process negotiated with a union, or any other similarly interactive process. If you have multiple facilities that are substantially similar, you may develop the assessment by facility type rather than site-by-site. However, employers with multiple facilities that are substantially different from one another may need multiple, separate assessments for each facility that address site-specific information affecting employee exposure risk to COVID-19.

Infection control plan: All employers must establish and implement an infection control plan based on the risks identified in the exposure risk assessment (described immediately above). Employers with more than 10 employees and exceptional risk workplaces must document the infection control plan in writing. The infection control plan must include the controls identified in the exposure risk assessment, including but not limited to ventilation, staggered shifts, redesigning the workplace to accommodate physical distancing, reducing use of shared surfaces and tools, limiting the number of employees and other individuals in work areas, and PPE. At a minimum, the infection control plan must also include the following:

  1. A list of all job assignments or worker tasks requiring the use of PPE necessary to minimize employee exposure to COVID-19;
  2. The procedures you as the employer will use to ensure that there is an adequate supply of masks, face coverings, or face shields and PPE necessary to minimize employee exposure to COVID-19;
  3. A list and description of the specific hazard control measures that you installed, implemented, or developed to minimize employee exposure to COVID-19;
  4. A description of your COVID-19 mask, face covering, and face shield requirements at the workplace, and the method of informing individuals entering the workplace where such controls are required;
  5. The procedures you will use to communicate with your employees and other employers in multi-employer worksites regarding an employee’s exposure to an individual known or suspected to be infected with COVID-19. This includes the communication to individuals identified through COVID-19 contact tracing and general communication to the workplace at large; and
  6. The procedures you will use to provide your workers with initial employee information and training required by the rule (the “initial information and training” is described below in the “December 21” section of this article).

Employers required to document the plan in writing may use one or more of Oregon OSHA’s sample infection control plans, which Oregon OSHA has stated will be available before the effective date of this provision. Vigilant will update our members via our newsletter when Oregon OSHA releases the sample plans.

Exceptional risk workplaces - additional infection control plan requirements: Exceptional risk workplaces must include the following additional information in their infection control plans:

  1. The name of the person responsible for administering the plan (who must be knowledgeable in infection control principles and practices); and
  2. As frequently as necessary, a reevaluation and update of the plan to reflect changes in the workplace that affect worker exposure to COVID-19 or in response to updated guidance published by the OHA that is applicable to the workplace (which must include feedback from front-line workers).

Exceptional risk employers should see Section 4(c) of the rule for more details on the additional infection control plan requirements.

Employee training and information: All employers must provide workers with information and training regarding COVID-19. Employers can provide the training remotely or using computer-based models, but such training must be provided in a manner and language understood by the affected workers. The training must ensure feedback from workers on all the required training elements, which are:

  1. Physical distancing requirements as they apply to the employee’s workplace and job function(s);
  2. Mask, face covering, or face shield requirements as they apply to the employee’s workplace and job function(s);
  3. COVID-19 sanitation requirements as they apply to the employee’s workplace and job function(s);
  4. COVID-19 signs and symptom reporting procedures that apply to the employee’s workplace;
  5. COVID-19 infection notification process as required by the rule (described above in the “November 16” section of this article);
  6. The characteristics and methods of transmission of the virus;
  7. The symptoms of the COVID-19 disease;
  8. The ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the virus; and
  9. Safe and healthy work practices and control measures, including but not limited to physical distancing, sanitation, and disinfection practices.

Oregon OSHA has stated it will make sample training materials for certain required portions available before the effective date of this provision. Vigilant will update members via our newsletter when Oregon OSHA releases the sample training materials. However, Oregon OSHA cannot provide training materials that detail workplace-specific needs, such as how to properly navigate the physical space of a particular workplace while maintaining appropriate physical distance. Employers will be the best judges of how these rules affect their individual spaces. All employers will need to tailor the training to meet their individual needs while still complying with all the requirements. Oregon OSHA has stated that, to the extent employers have already provided training on the listed requirements, they need not do so again, but must supplement that training to include the listed requirements employers may have missed in prior training.

Exceptional risk workplaces – infection control training: In addition to the employee information and training (described above), exceptional risk workplaces must provide employees with additional training on infection control. Exceptional risk employers should see Section 4(a) and (b) for details on the infection control training requirements.

Ventilation requirements: All employers must optimize the amount of outside air circulated through their existing heating, ventilation, and air conditioning (HVAC) system(s) to the extent possible whenever there are employees in the workplace and the outdoor air quality index remains at “good” or “moderate” levels. (The implication is that employers need not use these systems when air quality is worse and bringing in outside air could be detrimental to employee health). Employers aren’t required to install new ventilation equipment, but rather to maximize the outside air circulated through their existing systems. Employers with HVAC systems must ensure that: (1) all air filters are maintained and replaced as necessary to ensure the proper function of the system; and (2) all intake ports that provide outside air to the HVAC systems are cleaned, maintained, and cleared of any debris that may affect the function and performance of the systems.

Additional ventilation requirements for certain employers – Hospitals, ambulatory surgical centers, long-term care facilities providing skilled and/or intermediate level nursing care, and other health care facilities must meet additional ventilation requirements. Such employers should see Section 4(f) of the rule for details on the additional ventilation requirements.

Feasibility: In the rule, Oregon OSHA gives employers flexibility when it is infeasible to implement particular parts of the rule. The rule states that “if the employer can demonstrate that it is functionally impossible to comply or if doing so would prevent completion of the work, the employer need not comply, but must take any available reasonable alternative steps to protect the employees involved.” In other words, Oregon OSHA will be reasonable in enforcing the rule as long as employers can demonstrate they’re taking all possible steps to comply with as many parts of the rule as possible. However, keep in mind that Oregon OSHA requires compliance to be “functionally impossible” to be considered infeasible, which is a high bar to meet.

Penalties: The rule itself doesn’t specify penalties, but exists under a statutory scheme that allows Oregon OSHA to impose safety citations and civil penalties on employers who don’t comply with the rule. Depending on the severity of the violation, such penalties could be steep, at Oregon OSHA’s discretion. As with other rules enforced by Oregon OSHA, if an employer willfully chooses not to comply with any part of the rule, and such noncompliance results in the death of a worker (which is possible in the time of COVID-19), employers may also be subject to criminal prosecution.

Hang the required poster in a conspicuous place where workers will see it, and email it to remote workers. Figure out what employer category you fit into: determine whether you have more than 10 employees statewide (including part-time and temps), and whether you qualify as an exceptional risk workplace. Read the rule. It’s long, but much of it is composed of appendices applicable only to employers in certain industries, like restaurants, retail operations, or educational institutions (there are more than the few examples of special industries we’ve listed here). Employers in those industries should become familiar with the relevant appendix and comply with those rules in addition to the baseline requirements. Use Oregon OSHA’s “Overview Table for Temporary Rule” as a checklist to make sure you meet all the applicable requirements of the rule.

Begin working on the exposure risk assessment ASAP. Oregon OSHA has already made their template for that available. Once it’s done, keep it in case you have an inspection. Use that document to assist you in developing and/or documenting the baseline requirements, which in turn will provide valuable information to use in your infection control plan and the required training for employees. Oregon OSHA has stated it will release sample control infection plans and sample training materials before the effective dates for those parts of the rule. Vigilant will update you when that happens, but continue to check Oregon OSHA’s rule website for updates. If you have questions, call your Vigilant safety professional.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.