By Kathryn M. Hindman
Note: This alert was originally published on November 5, 2020. Thereafter on Friday, November 6, 2020, Oregon OSHA adopted the final version of the Temporary Oregon OSHA COVID-19 Rule, now codified as OAR 437-001-0744, and linked here: https://osha.oregon.gov/rules/advisory/infectiousdisease/Pages/default.aspx. Oregon OSHA has also prepared: 1) an Overview Table of COVID-19 requirements for all workplaces, employers with more than 10 employees statewide, and exceptional risk workplaces; 2) an Exposure Risk Assessment Form, and 3) and OSHA COVID-19 Hazards poster, all accessible at the OSHA Infectious Disease Rulemaking page and here: https://osha.oregon.gov/rules/advisory/infectiousdisease/Pages/default.aspx. The Rule goes into effect on November 16, 2020, and will remain in effect until May 4, 2021, unless revised or repealed before that date. Employers will also have until December 7, 2020, to complete the Exposure Risk Assessment and Infection Control Plan, and until December 21, 2020, to complete employee training, all explained in more detail below. The following alert has been revised to incorporate the new deadlines in the final Temporary Oregon OSHA COVID-19 Rule.
The federal Occupational Safety and Health Administration's (OSHA) response to the pandemic has been to rely on the General Duty Clause (Section 5(a)(1)) to address and communicate its safety expectations to employers to minimize the spread of COVID-19. Many states, including Oregon, have moved forward to augment the current federal OSHA regulations by implementing additional temporary COVID-19 rules to further address workplace infection control guidelines. The final Temporary Oregon OSHA COVID-19 Rule, codified as OAR 437-001-0744: “Addressing COVID-19 Workplace Risks” (dated November 6, 2020, and effective on November 16, 2020) applies to all workplaces and places additional requirements on workplaces with "exceptional risks" of exposure, limited to certain healthcare-related activities involving direct patient care and emergency first responder activities.
Although the new OR-OSHA COVID-19 Rule generally reflects pandemic safety recommendations previously released by the Oregon Health Authority (OHA), such as social distancing and masking, other provisions add additional layers of infection control, notice to employees, requirements to assess COVID-19 exposure risk, and workplace monitoring that are new to Oregon employers and will require quick action and planning.
In addition, effective October 19, 2020, the OHA revised its Statewide Mask, Face Covering, Face Shield Guidance, and recommendations. This alert summarizes the key provisions for Oregon employers in the new OR-OSHA COVID-19 Rule and incorporates OHA's revised masking Guidance.
The OR-OSHA COVID-19 Rule organizes its requirements into two segments: (1) those required for all workplaces, and (2) those required for workplaces with an exceptional risk of exposure.
COVID-19 Requirements for All Workplaces
In general, all Oregon employers must comply with overall safety standards, conduct a pandemic risk assessment, implement an infection control plan and notification process, post the COVID-19 Hazards poster, and conduct employee training.
- 6-foot physical distancing. Employers must ensure that “work activities and workflow” at the worksite, whether indoors or outdoors, are designed to keep workers and other individuals at least 6-feet from each other to fulfill their job duties unless the employer can demonstrate that such separation is “not feasible.” If such separation is not practical, employers must ensure face coverings are worn, and distances are maintained to the extent possible. When transporting employees for work, vehicles carrying individuals who are not in the same household are limited to half of their legal passenger capacity, or two individuals total, whichever is higher, and all must wear a mask, face covering, or face shield regardless of the distance or duration of the ride.
- Masks, face shields, and face covering requirements. Everyone in the workplace 5 years of age or older, not actively eating, drinking, or smoking (including customers, vendors, patrons, contractors, etc.) must wear a mask, face shield, or face covering in any instance where employees and other individuals cannot be reliably separated by at least 6-feet, whether indoors or outdoors. Employees must be provided such face coverings at no additional cost. In indoor work settings (regardless of social distancing), employers must ensure that all individuals wear masks, face shields, or coverings unless the individuals are in a private, individual workspace not shared with other people. In outdoor work settings subject to an employer’s control, employers must ensure that individuals use a mask, face covering, or face shield whenever individuals cannot be separated by at least 6 feet. These requirements come specifically from the OHA’s recently updated guidance:
The October 19, 2020, OHA Statewide Mask, Face Covering, Face Shield Guidance https://sharedsystems.dhsoha.state.or.us/DHSForms/Served/le2288K.pdf
(applicable to businesses such as public transit and ride-sharing services, restaurants, wineries and bars, retail and grocery stores, fitness-related indoor or outdoor operators, markets and street fairs, and public and private schools, colleges and universities) recommends that people wear a mask or face covering, with or without a face shield, whenever they are within 6-feet of people who do not live in the same household. A mask, face shield, or covering is not required if the individual is under 5 years old, is sleeping, or actively eating or drinking, is engaged in an activity where wearing one is not feasible ( such as during commercial scuba diving), during examinations of the face, or when identity needs to be confirmed by visual comparison. Like the current OSHA temporary Rule, the Guidance specifically states that wearing a face shield alone is not recommended, as masks and face coverings are more effective at source control and provide more protection against aerosols to the wearer. According to the OHA, the use of a face shield alone should only be allowed in limited situations when wearing a mask or face covering is not feasible, such as when a person has a medical condition that prevents them from wearing a mask or face covering, when people need to see mouth and tongue motions in order to communicate, and when an individual is speaking to an audience for a short period of time, and clear communication is not otherwise possible. Proper "masks" and "face coverings" do not include those made out of mesh or lace with visible gaps, openings, valves, or holes and should fit snuggly and cover the nose, mouth, and the sides of the face. If a business has an employee who has a medical condition that prevents them from wearing a mask, face covering, or face shield, the OHA refers employers to a website that discusses the interactive process for reasonably accommodating such limitations (https://www.adasoutheast.org/ada/publications/legal/ada-and-face-mask-policies.php
- Minimal cleaning and sanitation requirements. The Rule requires all employers to regularly clean common and high-touch areas and equipment (i.e., door handles, telephones, cash registers, computers, drinking fountains, seatbelts, etc.) under their control and accessible to employees or the public. If the common area is occupied or otherwise used, sanitation must be every 24 hours if the space is occupied for less than 12 hours, or at least every eight hours for a workplace occupied 12 hours or more. Employers must provide employees with sanitation supplies or the time necessary to sanitize their work area and to wash their hands more frequently if the worker chooses to do so. Unless the area has been unoccupied for seven days or more (or is in healthcare settings where COVID-19 patients are being treated), employers must also clean and disinfect areas where individuals known or suspected to be infected with COVID-19 have been present prior to allowing employees access to the area. The space should be unoccupied for 24 hours before cleaning and sanitation. (Additional sanitation requirements for exceptional risk workplaces are included below).
- Posting requirements. The "COVID-19 Hazards Poster" provided by OR-OSHA must be permanently posted in a conspicuous place in a central location. Employees working remotely must be provided with a copy of the poster through electronic or equally effective means.
- Special requirements for building operators. No later than November 23, 2020, building operators must ensure that the building layout allows appropriate social distancing and that other basic requirements of this Rule (including a "Masks Required" sign developed by the OHA) are posted in any common areas including shared entrances, waiting rooms, corridors, restaurants, and elevators.
- Ventilation requirements. No later than January 6, 2021, employers must maximize the amount of outside air existing through its HVAC systems, as well as clean and maintain filters.
- Conduct a COVID-19 exposure risk assessment. No later than December 7, 2020, all employers must conduct a COVID-19 exposure risk assessment without regard to the use of professional personal protective equipment or masks, face shields, or face coverings. The risk assessment must involve feedback and participation from employees via a safety meeting, a supervisor, or process negotiated in a collective bargaining agreement. Every employer with more than 10 employees statewide (including temporary part-time workers) and workplaces at “exceptional risk" must record their COVID-19 exposure risk assessment in writing by documenting: the name, job titles, and contact information of the person who performed the exposure risk assessment, the date the assessment was completed, the employee job classifications that were evaluated, and a summary of the answers to each of the thirteen applicable exposure risk assessment questions that assess potential employee exposure to COVID-19 in the workplace. Such a risk exposure assessment evaluation includes an overall evaluation of the OR-OSHA COVID-19 Rule implementation such as whether or not employees are allowed to telework or otherwise work remotely; the routine distances for working and workflow; how the workplace or job duties have been modified to provide at least 6-feet of physical distancing; how the mask/face covering policy has been implemented; foot traffic control and other administrative controls that have been used to minimize employee exposure; the policy or procedure for employees to report hazards related to COVID-19; sanitation methods, and if/how the employer has implemented controls that provide layered protection from COVID-19 hazards that minimize reliance on individual training and behavior. The assessment also requires an evaluation of certain industry-specific COVID-19 requirements included in Appendix A of the OSHA Rule.
Oregon OSHA has developed a Risk Assessment template accessible here: https://osha.oregon.gov/rules/advisory/infectiousdisease/Pages/default.aspx
and indicates that sample Risk Assessments will be available to assist employers in completing this task.
- Infection control plan. No later than December 7, 2020, all employers must establish and implement a plan to address any risks identified by the risk assessment. Employers with 10 or more employees must put the Plan in writing and have it available to employees. The Plan can be separated by facility but should address the six required elements, which in general include: listing job titles and tasks, mask procedures, hazard control procedures, and how to communicate the Plan and training to employees. Documenting the assessment process and Plan will be key to minimizing risks.
- Employee information and training. No later than December 21, 2020, all employers must provide information and training about COVID-19 to their employees and ensure that employees are provided an opportunity for feedback about the topics covered. For most employers, the training must include specific COVID-19 signs and symptoms reporting procedures, requirements on physical distancing, mask, face covering and face shield requirements, and sanitation requirements as they apply to the workplace and job function(s).
Oregon OSHA states it will provide sample training materials that can be sued to complete this training. To the extent an employer has already provided training before adoption of the final Rule, the employers does not have to repeat the training, but “may need to take steps to ensure that additional information is covered and that appropriate employee feedback can be provided.”
- COVID-19 infection notification process. Excluding settings where patients are hospitalized, employers must establish a process to notify affected employees that they had work-related contact with an individual who has tested positive for COVID-19. The process must include notifying affected employees within 24 hours after becoming aware of a positive test result that an individual with COVID-19 was present or otherwise may have had work-related contact, taking into consideration medical confidentiality and privacy rules (i.e., not identifying employees or individuals who tested positive for the virus, but rather gathering the names of employees who worked in “close contact” with someone who has tested positive (currently defined as within 6 feet for a total of 15 minutes over a 24 period starting from 2 days before illness onset or positive test) and consulting the most recent guidance from Centers for Disease Control (CDC).
- COVID-19 testing for workers and cooperation with official mandated testing. When the OHA or other public health agency requires testing in the workplace, employers must cooperate by making its employees and space available for testing at no cost to employees. OSHA reminds employers that reporting COVID-19 cases may be required under OAR 333-018-0016.
- Note: Remember that for employees with disabling conditions, teleworking may be considered to be a reasonable accommodation if it is medically necessary, and the employee can perform the essential functions of the job without creating an undue hardship on business operations (with or without accommodation).
Under the OR-OSHA Temporary Rule, if an employee participates in such quarantine or isolation, or if the employer chooses to take additional precautions, the worker is entitled to return to their previous job duties if still available, and without any “adverse action“ as a result of quarantine or isolation. "Adverse action" does not require that the employer keep a job available that would not otherwise have been available had the employee not been quarantined or isolated, but it does mean that the employer cannot fill the job of the quarantining employee with another employee.
- Note: For qualified employees, such a leave due to so-called "medical removal" may be covered by the employee's accrued paid leave under the employer’s policy and may be otherwise protected by Oregon Paid Sick Leave, federal and/or state family medical leave, and the Families First Coronavirus Relief Act (FFCRA.)
OR-OSHA also reminds employers that decisions regarding COVID-19 testing and return to work after an employee participates in COVID-19 quarantining or isolation activities must be in accordance with the public health authorities and the medical provider's guidance. Employees who are quarantined or isolated are protected from discrimination and retaliation under ORS 654.062(5) and the Oregon Safe Employment Act, as well as other related statutes and laws. Employers only need to record “medical removal” on their OSHA 300 log if the infection of the worker is determined to be “work-related” in accordance with OAR 437-001-0700.
- "Medical removal": Employee removal from work due to COVID-19. If a medical provider or local public official recommends that an employee be restricted from work in order to quarantine or isolate for COVID-19, as a result of identification through contact tracing, the worker must isolate at home and away from other non-quarantined individuals until a medical provider or public health authority determines the employee may return to work. If possible, employers must allow affected employees to work from home if suitable work is available and the employee's condition does not prevent them from teleworking.
Additional COVID-19 Requirements for Workplaces at Exceptional Risk
- Special rules for specific Industries and workplace activities (Appendix A). Employers covered by one of or more of the mandatory workplace guidance for specific industries/workplace activities in Appendix A (i.e., restaurants and bars, retail stores, indoor and outdoor markets, personal service providers, construction, indoor and outdoor entertainment and recreation, transit, collegiate and minor-league sports, professional and PAC-12 sports, swimming pools, sports courts and fitness organizations, K through 12 education and early education, colleges and universities, vet clinics, fire service, and emergency, law-enforcement, and jails and custodial institutions) must also comply with the specific mandates of the applicable appendices.
Workplaces at “exceptional risk” include any setting where an employee (including any temporary and part-time employee) performs: (1) direct patient care or environmental decontamination services in a healthcare setting, residential or assisted living and in-home care, aerosol-generating healthcare or postmortem procedures, handling human tissue or lab specimens collected from one known or suspected to have COVID-19, or (2) emergency first responder activities, including job duties that require an employee to be able to arrive first and provide assistance at the scene of an emergency, such as an accident, fire, national or natural disaster, and includes law enforcement officers, firefighters, EMTs, and paramedics. In addition to the mandates for all Oregon workplaces, these exceptional risk employers must also adhere to the following requirements:
- Infection control training by December 21, 2020, which includes the modes of transportation for COVID-19, basic risk factors associated with pandemic transmission, an explanation of the employer’s exposure risk assessments, employer’s physical distancing policy, the handling and maintenance of masks and other personal protective equipment, and an explanation of the hazard control measures implemented or installed by the employer;
- Additional infection control plan requirements by December 7, 2020, including the identity of a 'knowledgeable" person responsible for administering the Plan, a reevaluation as frequently as necessary to reflect any changes, with employee feedback, and an assessment of control measures to be used;
- Specific heightened risk ventilation requirements;
- Screening and triaging measures for individuals entering healthcare settings for signs of COVID-19;
- Barriers, partitions, and isolation rooms to protect healthcare workers, patients, and visitors;
- Exceptional risk personal protective equipment, depending on the requirements of the medical procedure in question and the disease status of the involved patient;
- Specific cleaning and sanitation in healthcare settings to reduce the risk of COVID-19 transmission; and
- Medical removal provisions specific to healthcare settings.
For now, Oregon employers should outline and digest the OR-OSHA Rule, determine which timelines and requirements apply to their specific business, and prepare to implement them soon. Download the Exposure Risk Assessment Form, as well as the OSHA COVID-19 Hazards poster to communicate these essential requirements to workers, and remember we are here to help.
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