Oregon OSHA Temporary Rule for Exceptional Risk Workplaces

NOTE: Tonkon Torp has developed a Field Guide to help employers understand and implement the Emergency Oregon OSHA COVID-19 Rule (the "Rule"). Please fill out this form if you would like to learn more or purchase a copy of the Field Guide.

By Clay Creps

We recently published an article about the Temporary Rule Oregon OSHA issued for workplaces in the State of Oregon. That article covered the provisions of the Rule applicable to all workplaces in the State of Oregon. The Rule also has provisions regarding what are termed “Exceptional Risk Workplaces.” This article will cover those provisions.

“Exceptional Risk Workplaces” are defined under the Rule to include those with employees involved in direct patient care; aerosol-generating healthcare or post-mortem procedures; emergency first responder activities; personal care activities; handling material that is reasonably anticipated to be contaminated with COVID-19; or handling human remains or tissue specimens or laboratory cultures collected from individuals suspected or known to have COVID-19. These workplaces pose heightened risks for employees and other individuals and therefore Oregon OSHA has 'imposed' heightened requirements on these workplaces. But note that the Rule provides: “'Exceptional risk’ does not include workers of other departments or job duties outside the scope and underlying definitions of (1)(c) of this rule. For example, employees in the accounting department at a hospital would be covered by the requirements applicable to all workplaces, while other workers at the same hospital who actually perform any of those job operations listed under (1)(c), such as direct patient care, would be subject to the supplementary requirements for workplaces at exceptional risk in addition to the requirements for all workplaces.” These requirements are in addition to all of the requirements which apply to all workplaces. See our article on exceptional risk workplaces here.

1. Mandatory Safety Standards

The Rule places no additional requirements on Exceptional Risk Workplaces with respect to physical distancing, vehicles/transportation during work, or posting requirements. The Temporary Rule has extensive provisions regarding Personal Protective Equipment (PPE) which we will address below in a separate section.

Sanitation: The Rule places additional requirements on Exceptional Risk Workplaces in regards to sanitation requirements. The employer must develop procedures for routine cleaning and disinfection that are appropriate for SARS-CoV-2 in healthcare settings, including those patient-care areas in which aerosol-generating procedures are performed (for example, using cleaners and EPA-registered, hospital-grade disinfectants for frequently touched surfaces or objects in accordance with manufacturer instructions and contact time specifications). The Rule refers employers to List N on the EPA website for EPA-registered disinfectants that have qualified under EPA's emerging viral pathogens program for use against SARS-CoV-2. The Rule also requires employers to 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, 2008.

Ventilation: The Rule has additional requirements for Exceptional Risk Workplaces in regards to ventilation. Such employers, to the extent the ventilation systems are under the control of the employer, must be operated, if possible, in hospitals, ambulatory surgical centers, and long-term care facilities providing skilled and/or intermediate level nursing care in accordance with the provisions of the American National Standards Institute (ANSI)/American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standards 62.1 and 62.2 (ASHRAE 2019a, 2019b), which include requirements for outdoor air ventilation in most residential and nonresidential spaces, and ANSI/ASHRAE/ASHE Standard 170 (ASHRAE 2017a) which covers both outdoor and total air ventilation in healthcare facilities. This does not require the installation of a new ventilation system. Further, existing ventilation systems in other health care facilities must be upgraded to a minimum MERV 13 rating, provided that such an upgrade will result in no significant performance reduction of the system

2. Risk Assessment

The Rule does not place any additional requirements on Exceptional Risk Workplaces regarding the required Risk Assessment.

3. Infection Control Plan

The Infection Control Plan for Exceptional Risk Workplaces also must be completed by December 7, 2020. The Plan must be in writing regardless of the number of employees the employer has. In addition to the requirements previously set forth, there are the following additional requirements:

1. The Plan must contain the name(s) of the person responsible for administering the Plan. This person must be knowledgeable in infection control principles and practices as they apply to the workplace and employee job operations.
2. As frequently as necessary, there must be a reevaluation of the Plan to reflect changes in the facility, employee job duties, new technologies, or workplace policies established by the employer that affect worker exposure to COVID-19 or are in response to updated guidance published by the Oregon Health Authority that is applicable to the employer’s workplace. This reevaluation and update of the Infection Control Plan must include feedback from non-managerial, frontline employees who perform activities that reflect the employer’s exceptional risk under the Rule. This feedback is not required from all employees and may be achieved via a safety meeting, safety committee, supervisor, process negotiated with the exclusive bargaining agent (if any), or any other similarly interactive process.

4. Employee Training

By December 21, 2020, Exceptional Risk Workplaces must also provide workers with information and training. There are significant additional requirements for this training.

For the Exceptional Risk Workplace, the training must be overseen or conducted by a person knowledgeable in the covered subject matter as it relates to the employee’s job duties. Further, the training material must be appropriate in content and vocabulary to the education, literacy, and language of the affected workers. Lastly, the training must provide an opportunity for interactive questions and answers (must be “live” in order to allow immediate response and further clarification, but need not be in person) with a person knowledgeable in the training program’s subject matter and basic epidemiology as it relates to the workplace and employee job duties.

There are additional elements which training for the Exceptional Risk Workplace must include:

1. An explanation of the Rule and its applicable appendices and provisions;
2. An explanation of contact, droplet, and airborne modes of transmission of COVID-19, including how workers can recognize hazardous work activities that may involve exposure to COVID-19 and how employees can take precautionary measures to minimize their exposure;
3. An explanation of the basic risk factors associated with COVID-19 transmission including, but not limited to, behavioral risk factors (this may include non-work activities that are higher-risk activities such as attending large social gatherings); physiological risk factors; demographic risk factors; and environmental risk factors;
4. An explanation of the employer’s COVID-19 exposure risk assessment required by this rule and which employee job classifications, tasks, or job duties were considered as part of that risk assessment;
5. An explanation of the employer’s physical distancing; mask, face covering, and face shield requirements; and COVID-19 sanitation requirements at the workplace. Where applicable, this information must include any multi-employer worksite agreements related to the use of common areas and shared equipment that affect employees at the workplace;
6. Information on the types, use, storage, removal, handling, and maintenance of masks, face coverings, face shields, and personal protective equipment (including respirators) provided to employees by the employer; and
7. An explanation of the use and limitation of COVID-19 hazard control measures implemented or installed by the employer. Hazard control measures include engineering, administrative, or work practice controls that eliminate or otherwise minimize employee exposure to COVID-19.

5. Healthcare Personal Protective Equipment

The Rule contains requirements for personal protective equipment in the healthcare setting. Depending on the requirements of the procedure (for example, aerosol generating procedures) in question and the disease status of the involved patient(s), employers must use a combination of standard precautions, contact precautions, droplet precautions, airborne precautions, and eye protection (for examples, goggles, face shields) to protect healthcare workers with exposure or potential exposure to COVID-19. Further, when an employee performs an aerosol-generating healthcare or post-mortem procedure for a patient without evidence of COVID-19 infection, the employer must provide PPE in accordance with the CDC’s Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-19) Pandemic. Oregon OSHA recognizes that risk of infection in asymptomatic patients can vary based on clinical presentation, level of COVID-19 transmission in the community, recent COVID-19 testing results, and other factors. These factors must be considered in clinical judgment by healthcare personnel involved in direct patient care and medical examiners in making decisions about use of transmission-based precautions. Whenever an employee provides direct patient care for a patient known or suspected to be infected with COVID-19, the employer must provide the affected worker with: gloves, a gown, eye protection (goggles or a face shield), and a medical-grade mask or a NIOSH-approved respirator. In lieu of these requirements, hospitals and ambulatory surgical centers may follow Guidance for Non-Emergency and Elective Procedures Recommendations to the Oregon Health Authority July 20, 2020. If PPE availability is limited, such employers may follow the OHA/Oregon OSHA Interim Guidance: Use of Personal Protective Equipment by Healthcare Personnel in Resource Constrained Settings. The Rule notes that if PPE availability is genuinely limited, a procedure cannot be deferred and good-faith efforts are made to ensure the safety and protection of the healthcare workers, Oregon OSHA will evaluate the situation based on PPE availability.

6. Barriers, Partitions, and Airborne Isolation Rooms in Healthcare Settings

The Rule provides for certain measures which an employer must employ to protect healthcare employees and to support workers, patients, and visitors from individuals known or suspected to be infected with COVID-19. First, when available, an employer must use airborne infection isolation rooms (AIIRs) with proper ventilation to house patients known or suspected to be infected with COVID-19. Second, patients known or suspected of being infected with COVID-19 must don a face covering and be isolated in an examination room with the door closed. If an examination room is not immediately available, such patients must not be allowed to wait within six feet of other patients seeking care and should be encouraged to wait in a personal vehicle or outside the healthcare setting where they can be contacted by mobile device when it is their turn to be evaluated. During a medical emergency, all measures may not be feasible, but must be implemented in whole or in part as the patient’s condition and necessary medical care allow. If a patient cannot tolerate any form of face covering due to a medical condition, strict physical distancing and appropriate PPE must be used to protect patients and workers, respectively. Third, an employer must use physical barriers or partitions in triage areas to guide patients when appropriate. Lastly, an employer must use curtains to separate patients in semi-private areas.

7. Screening in Healthcare Settings

The Rule requires employers to screen and triage all individuals entering its healthcare setting for symptoms of COVID-19. At a minimum, the employer must limit and monitor points of entry to the healthcare setting where direct patient care, or aerosol-generating healthcare or postmortem procedures are performed by workers. Consideration must be given to establishing stations at the healthcare setting entrance to screen individuals before they enter. Further, an employer must screen all individuals and employees entering the healthcare setting for symptoms consistent with COVID-19. (This does not include emergency responders entering the healthcare setting with a patient.) This can be achieved by asking the affected individual about symptoms of COVID-19 and asking if they have been advised to self-quarantine because of exposure to someone with COVID-19 or if they have been told to isolate after testing positive for COVID-19. The employer could also consider taking the temperature of these individuals in addition to asking these questions.

This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.