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.      

Federal Coronavirus Response Act creates new paid leave requirements for many employers

 

The Families First Coronavirus Response Act creates new paid leave provisions that went into effect April 1 and will remain in effect until December 31, 2020. These provisions apply to employers of 1-499 employees, and to both full-time and part-time employees.

 

Employers of health care providers (which is interpreted broadly) and emergency responders can chose to exempt those employees from these paid leave provisions. An employer of fewer than 50 employees can also choose to assert an exemption if it determines the business will be sufficiently jeopardized within the parameters set forth by the Department of Labor; however, that exemption can only apply to leave for the purpose of caring for a child due to school closure or unavailability of child care (see below). 

 

The Department of Labor has issued regulations interpreting these laws. It has also created guidance in the form of a Fact Sheet for Employers and a Q & A page, as well as a poster that satisfies the notice requirements for most employers FAQ regarding notice requirements. It is important to review these materials carefully. 

 

This is only a general summary. The legal and regulatory response to COVID-19 are rapidly evolving. Affected employers should stay tuned for further developments, including checking the links above, which may be updated. You can also check the Department of Labor news page. You should contact an employment law attorney for specific legal advice regarding the facts of your situation.

 

Emergency Family and Medical Leave Expansion Act

 

The Act temporarily expands the Family Medical Leave Act (FMLA) to provide for up to 12 weeks of job-protected leave for eligible employees of covered employers. The only qualifying reason for leave under the final version of the Act is for an employee who is unable to work or telework to care for their child under the age of 18 whose school or place of childcare is closed or the childcare provider is unavailable due to a public health emergency.  

 

Even if you never had to think about FMLA before as an employer because you did not meet the ordinary threshold of 50 or more employees, smaller employers are bound by this temporary provision. This temporary FMLA provision also differs from the rest of FMLA in that the employee only needs to have worked for the employer for at least 30 days to qualify for the leave (as opposed to the ordinary 12-month and minimum hours requirement under FMLA).

 

Another feature that distinguishes the Act from traditional FMLA: the employer must provide paid leave, after an initial 10-day period. During the initial 10-day period of unpaid leave, an employee is permitted to use any accrued paid leave (e.g., sick or vacation leave). Also, as discussed below, an eligible employee can use the new Emergency Paid Sick Leave during the 10-day period.

After the initial 10-day period, the employer must generally pay the employee 2/3 of their regular pay, at the number of hours the employee would regularly be scheduled (capped at $200 per day, and $10,000 total). For part-time employees or those who work an irregular schedule, pay is based on the average hours worked on the six months preceding the leave, or if the employee has worked for the employer less than 6 months, the number of hours reasonably expected at hire.    

 

The Act also includes job reinstatement rights. For employers of 25 or more employees, those are generally the same as under traditional FMLA. Employers of fewer than 25 employees are also required to reinstate employees if certain requirements are met.

 

Violations can result in damages for lost wages and benefits, actual damages, liquidated damages, and attorney fees and costs (although there is no private right of action against employers of fewer than 50).

      

Emergency Paid Sick Leave Act

 

The Act requires covered employers to provide paid leave to eligible employees for qualifying leave. The amount of pay depends on the reason for the leave.

The reasons for leave are:

 

  1. Regarding the employee’s own condition:

 

  • Subject to quarantine per certain orders or health care advice relating to COVID-19; or

 

  • Experiencing COVID-19 symptoms and seeking diagnosis

   2. Regarding other individuals:

 

  • Caring for an individual subject to quarantine per certain orders or health care advice relating to COVID-19 (the regulations indicate this must be someone the employee would reasonably be expected to care for, and provides a few examples); or

 

  • Caring for the employee’s child if the child’s school or place of childcare is closed or the childcare provider is unavailable, due to a public health emergency

   3. Finally, there is a provision for the Department of Health and Human Services to identify “substantially similar” conditions             that would qualify for leave.    

 

Emergency Paid Sick Leave applies regardless of how long the employee has been employed with the employer. Full-time employees are entitled to 80 hours of paid leave for reasons falling under Item 1 above, and 2/3 of their regular rate for reasons falling under Items 2 or 3. Part-time employees or those who work irregular hours are entitled to be paid based on the average number of hours worked during the six months preceding the leave. An employee who has worked for the employer less than six months is entitled be paid based on the average number of hours worked over a two-week period. Paid sick leave is capped per employee at $511 per day and a total of $5,110 for reasons under Item 1, and $200 per day or $2,000 total for reasons under Items 2 or 3.

 

Also, if Emergency FMLA leave is also applicable (see above), if the employee requests, for the initial 10 days of Emergency FMLA, the employer is required to pay the employee’s entitled Emergency Paid Sick Leave. This would only apply in the case of leave to care for a child whose school has closed or childcare is unavailable.    

   

Emergency Paid Sick Leave under the Act may be in addition to other paid leave provided by the employer, and employees must be permitted to use it before other types of leave. Employers are not permitted to change other paid leave policies for purposes of avoiding these requirements. Employees are not entitled to carry over Emergency Paid Sick Leave.

 

The Act prohibits discrimination or retaliation against an employee for using protected leave or attempting to assert their rights. Remedies for violations may include wages, liquidated damages, attorney fees, and costs. 

© 2020 Matasaru Law P.C.