Oregon OSHA adopts permanent rule with a few modifications to prior temporary rule regarding COVID-19 safety requirements

 

05/06/21

On May 4, 2021, Oregon OSHA adopted its permanent rule regarding COVID-19 workplace safety (effective the same date). The permanent rule was necessary because the temporary rule enacted November 16, 2020 was set to expire, and a new temporary rule likewise would likewise have had a limited effective period. However, the intent is that the rule be repealed when it is no longer considered necessary. The agency has prepared a helpful summary of the limited changes from the temporary rule to the permanent rule. Employers should consult the full text of the rule for complete information. One important change is that all employers are now specifically required (effective June 3, 2021) to provide written notification of the relevant job protections to employees who quarantine or isolate under the rule. The rule also recommends employers provide any relevant information regarding benefits, such as paid leave or sick leave they may be able to take advantage of. The agency has indicated it intends to provide a sample notice. Employers should remember that there may be other requirements and job protections that apply in addition to the OSHA rule requirements, and should contact an attorney for specific legal advice.    

Oregon OSHA enacts rule with COVID-19 requirements for all employers, and specific requirements for “exceptional risk workplaces” including clinics.

11/16/20

After months of review and feedback, Oregon OSHA enacted its temporary rule create addressing COVID-19 workplace safety. The rule was enacted November 6, 2020 and is effective November 16, 2020 through May 4, 2021. This is only a general overview. The response of Oregon OSHA and other agencies to COVID-19 continues to evolve. The Oregon's OSHA COVID-19 page is a key resource.

The temporary rule, OAR 437-001-0074, creates requirements for all Oregon employers. There are additional requirements “exceptional risk workplaces” must follow. Exceptional risk workplaces include any setting where “direct patient care” is provided. Direct patient care means “any employee job duties that include direct physical contact with a patient during the delivery of healthcare services.” This includes clinics.  

The temporary rule establishes requirements in several key areas. Some requirements are practices clinics are likely already following, but a number are new. Some allow the employer a short time to implement, but others begin as soon as the temporary rule takes effect. Unless otherwise noted, requirements begin the effective date, November 16, 2020.  

The following are key highlights of the requirements affecting clinics:

  • Physical distancing: 6 feet of distance between individuals is required unless not feasible for certain activities.

 

  • Mask, face coverings, and face shields: Employers must ensure all individuals at any premises subject to the employer’s control wear a mask, face covering, or face shield in accordance with the Oregon Health Authority's Statewide Mask, Face Covering, Face Shield Guidance. One point from the OHA guidance is that use of a face shield alone is not recommended. The employer must provide masks, face coverings, or face shields. While a reasonable accommodation may be required for some individuals under applicable state and federal laws, a reasonable accommodation does not include simply exempting individuals from the requirement.  

 

  • Cleaning and sanitation: Regular cleaning or sanitation is required for common areas, shared equipment, and high-touch areas under the employer’s control and used by employees or members of the public. Frequency is determined by the amount of time the workplace is occupied. Employees must be provided both sufficient supplies and time to clean or sanitize. There are specific requirements for cleaning and sanitizing if someone known to be infected used or had direct physical contact with the area or equipment.

 

 

  • Ventilation: By January 6, 2021, the employer must optimize the outside air circulated through its HVAC systems. The main components of this provision are: maintaining and replacing air filters; and ensuring all intake ports are cleaned, maintained, and cleared of debris. Installation of new equipment is not required for most workplaces.  

    • Exceptional risk workplaces have heightened ventilation requirements, which  depend on the type of facility.     

 

  • Risk assessment: By December 7, 2020, all employers must conduct a COVID-19 exposure risk assessment. The risk assessment must involve employee participation and feedback through a process that is interactive. For employers of more than ten, the risk assessment must be recorded in writing. All risk assessments must address various questions set forth in the rule. Oregon OSHA has provided a risk assessment template.

 

  • Infection control plan: Also by December 7, 2020 all employers must establish and implement an infection control plan based on the risks identified in the risk assessment. Employers of more than 10 employees must document the infection control plan in writing and ensure a copy is accessible to employees. The rule contains a list of minimum elements that must be addressed by the infection control plan. Oregon OSHA will make a sample infection control plan available.

    • Exceptional risk workplaces have additional infection control plan requirements.

 

  • Employee information and training: By December 21, 2020, employers must provide workers with information and training regarding COVID-19. The training must provide an opportunity for employee feedback and include at least the several elements listed in the rule. Oregon OSHA will provide training materials that can be used for some portions of the training.

    • Exceptional risk workplaces have heightened training requirements.

 

  • Infection notification process: Employers must establish a process to notify exposed  employees (those who were within 6 feet of a confirmed COVID-19 individual for a cumulative of 15 minutes or more), as well as to notify affected employees (those who worked in the same facility, or well-defined portion thereof, where a confirmed COVID-19 individual was present). Notification must occur within 24 hours of the employer’s awareness. Employers must ensure compliance with state and federal law. In particular, an employee’s health information must be kept private. Also remember healthcare providers are already obligated to report any COVID-19 case to the local public health administration or OHA within 24 hours.      

         

  • Medical removal: If an employee must quarantine or isolate due to the requirements of the rule or because the employer chooses to take additional precautions, the worker must be permitted to return to their job duties if still available, without adverse action. Also remember Oregon law prohibits discriminating or retaliating against an employee for asserting any protected workplace safety rights.

 

  • Screening required in healthcare settings: Exceptional risk workplaces that are healthcare settings must screen and triage all individuals entering for COVID-19 symptoms. Remember to ensure the privacy of patient and employee health information.