Oregon OSHA Finalizes Temporary Workplace Safety Rules for COVID-19

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 Kristin Bremer Moore, Clay Creps, Christopher Morehead, and Megan Reuther

On November 6, 2020, Oregon Occupational Safety and Health Agency (OR-OSHA) adopted the Temporary Oregon OSHA COVID-19 Rule (the Rule) aimed at addressing the effects of the pandemic on the workplace. Unless otherwise indicated, the Rule’s provisions will take effect 10 days after adoption – on November 16. OR-OSHA is issuing helpful materials to assist employers to comply with the Rule, change, and, for that reason, Oregon employers should monitor OR-OSHA’s webpage closely and/or sign up for their email alerts here.

As we have discussed in two previous articles about the Rule when it was in draft form (see here and here), the Rule has two tiers of safety rules: (1) standards applicable to all Oregon workplaces; and (2) standards applicable to all “exceptional risk” workplaces, which is defined by the rule to include 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. The Rule also includes Appendix A, which outlines additional, industry-specific or activity-specific safety requirements, including for restaurants, bars, brewpubs, and public tasting rooms at breweries, wineries and distilleries; retail stores; outdoor/indoor markets; personal service providers; construction operations; indoor/outdoor entertainment facilities; outdoor recreation organizations; transit agencies; collegiate, semi-professional and minor league sports; professional and PAC-12 sports; licensed swimming pools, licensed spa pools and sports courts; fitness-related organizations; K-12 educational institutes (public or private); early education providers; institutions of higher education (public or private); veterinary clinics; fire service and EMS (including transport); law enforcement and jails and custodial institutions.

The Rule contains familiar safety standards that have become the norm, such as social distancing, mask use, and regular sanitation. However, the Rule also contains several new requirements for employers that will potentially be time consuming, which include conducting a Risk Assessment of the workplace with the input and participation of employees and, then, creating an Infection Control Plan to minimize the risks identified in the assessment. The Rule further requires employee training on the employer’s safety policies and protocols related to COVID-19, as well as new, posting requirements.

While the scope of this article is limited to the Rule’s safety standards that are applicable to all Oregon employers, businesses that employ individuals who are at “exceptional risk" for exposure or businesses that are subject to Appendix A are encouraged to contact their employment counsel for additional guidance. See our article on exceptional risk workplaces here.

  1. Mandatory Safety Standards

The safety standards required under the Rule, applicable to all Oregon workplaces, generally reflect the existing requirements and recommendations previously released by the Oregon Health Authority (OHA) and the Centers for Disease Control (CDC). The below mandatory safety standards go into effect on November 16, 10 days after the Rule’s adoption, unless otherwise indicated.

Physical Distancing: Initially, employers must “ensure” that “work activities and workflow” are designed to “eliminate the need for any employee to be within six feet of another individual” when performing their job duties. This physical distancing requirement applies to all individuals who set foot in an employer’s place of business (including employees, vendors, customers, contractors, postal service, etc.) and to both indoor and outdoor activities. It does, however, create an exception if a six-foot distance is not demonstrably feasible. In those cases, the employer must ensure that face coverings are worn and that as much distance as practical is maintained between individuals.

Vehicles/Transportation During Work: The Rule sets out specific requirements for maintaining appropriate distance for employees to travel together in a vehicle. (This only applies to transportation that is required for work, not driving to work before or after a shift or during lunch breaks or personal errands.) In addition, all passengers must wear a mask while in transit. These limitations do not apply when all passengers are from the same household.

Masks, Face Coverings, or Face Shields: The Rule also provides several requirements regarding face coverings. Rather than providing specific protocol, as it had done in previous drafts, the final Rule requires employers to adhere to Oregon Health Authority’s (OHA) recommendations and guidelines for masks and face coverings. Employer must stay tuned to OHA’s website for any changes related to masks in the workplace.

According to the Rule and OHA guidance, in addition to the six-foot rule and with limited exceptions, all individuals age five or older (which, again, is broader that just employees) must wear an acceptable face covering at all times while indoors in “areas subject to the employer’s control.” Exceptions to this requirement include when employees are working in a private, individual workspace, not shared with others; eating, drinking, or sleeping; for medical exams or identify verifications; or where face coverings are otherwise not feasible. Likewise, employees who transit together in a motor vehicle for work purposes must wear face coverings, regardless of the distance involved, unless all the individuals in the vehicle are members of the same household. Employees engaged in outdoor work activities in areas subject to the employer’s control must wear face coverings if those employees cannot maintain at least a six-foot distance from other individuals.

Notably, acceptable face coverings must cover the nose and mouth and rest snuggly above the nose, below the mouth, and on the sides of the face. They do not include coverings with a valve that are made of mesh, or otherwise have holes, openings, or visible gaps. Unless an employee opts to wear their own, face coverings must be provided by the employer at no cost to the employee. Further, although face shields are acceptable, Oregon OSHA strongly recommends that employees wear a mask or face covering as source control rather than a face shield alone.

Further, while Oregon OSHA recognizes that reasonable accommodation for those unable to wear a mask, face covering, or face shield is required, it makes clear that the reasonable accommodation is not simply exempting such individuals from wearing masks, face coverings, or face shields. Such accommodations might involve working from home or permitting such an employee to work in an individual workspace, such as a separate office.

Regular Sanitation: The Rule details sanitation requirements. Employers must “regularly” clean all common and high-touch areas and shared equipment at least: (1) every 24 hours for areas occupied less than 12 hours; or (2) every eight hours for areas occupied for 12 hours or more. If employers require employees to do the cleaning, then the employer must provide the supplies and compensate employees for the time spent cleaning. Common areas including lobbies, reception areas, waiting rooms, bathrooms, breakrooms, eating areas, smoking areas, locker rooms, bathing areas, transit lounges, conference rooms, and other indoor or outdoor areas that multiple individuals may congregate in or otherwise use. Some examples of high-touch surfaces are countertops, credit card terminals, doorknobs, digital kiosks, light switches, handrails, elevator panels, steering wheels, and printers. The Rule provides a narrow exception: If employees only “drop in” the office on occasion or have minimal staffing on site, then employers can rely on a regular schedule of cleaning and direct employees to sanitize their own work surfaces before use. This time must be paid.

The Rule also prescribes cleaning procedures when there is a known case of COVID-19 infection in the workplace. After a recommended 24-hour waiting period, areas where individuals known or suspected to be infected with COVID-19 have been present must be thoroughly sanitized before allowing other employees to access the areas. This protocol does not apply if the area has not been used for at least seven days after exposure. These standards are taken directly from the CDC’s guidance, and employers should consult that guidance for more specifics on sanitizing after exposure.

Also, building operator employees have an additional responsibility to sanitize all common areas, such as lobbies and elevators.

Finally, employers must also provide supplies (soap, water, and alcohol-based sanitizer) and time for hand washing before employees use shared equipment and more frequently if the worker desires more frequent handwashing than required.

Ventilation: As for ventilation, employers must work with their building operators to, by January 6, 2021, two months after the adoption of the Rule, “optimize the amount of outside air” circulated through the HVAC system, “to the extent the [existing] system can do so when operating as designed” when employees are in the building. This does not require installing a new HVAC system or even upgrading the existing system to certain standards; rather, it requires cleaning and maintaining all filters and intake ports that provide outside air to the HVAC system as frequently as is necessary.

Posting Requirements: All employers are required to post OR-OSHA’s COVID-19 Hazards Poster (found here in English and here in Spanish) in a visible, central location. The poster must also be electronically provided to all remote employees. Building operator employers have an additional posting requirement; they must post a “Masks Required” sign in all common areas open to visitors. OR-OSHA has explicitly approved the OHA’s sign for this purpose.

  1. Risk Assessment

No later than December 7, 2020, one month after the Rule is adopted, employers must conduct a Risk Assessment, the purpose of which is to reduce the risk of infection and spread of COVID-19 in the workplace. For purposes of the assessment, the “workplace” is essentially any place where employees work, including at a facility, at the office, in the field, or remotely. Notably, however, the Rule states that, if an employer has multiple facilities, the employer does not necessarily need to perform the assessment on a site-by-site basis. Rather, the assessment can be performed based on facility type as long as the multiple sites are common, have similar work flow, and share the same work functions. However, to the extent one site differs from another, the assessment must take into account those different circumstances.

In conducting the Risk Assessment, the Rule sets forth 13 questions (actually 22 questions when you count the subparts) that employers must address, without regard to PPE or other safety protocols such as masks and social distancing, as part of their assessment. Further, the Rule requires employee participation in conducting the Risk Assessment, and employers must solicit employee feedback on the 13 questions during this process. The 13 questions are:

    1. Can employees telework or work from home? How are employees encouraged or empowered to do so?
    2. What are the anticipated work distances between employees? Does this change during non-routine work activities?
    3. What are the anticipated work distances between employees and other individuals (customers, vendors, etc.)? Does this change during non-routine work activities?
    4. Are there modifications to workplace and/or job duties to provide at least 6 feet of distance between all individuals?
    5. What is the face mask or shield policy at the workplace? How is policy communicated to employees and individuals at workplace?
    6. What is the policy and procedures for reporting COVID-19 signs and symptoms? How is policy and procedures communicated to employees? How might quarantined employees work from home, if they are well enough to do so?
    7. How have engineering controls such as ventilation and physical barriers been used to minimize exposure?
    8. How have administrative controls been used to minimize exposure?
    9. What are the policies and procedures for reporting workplace hazards related to COVID-19? How are policies and procedures communicated to employees?
    10. What are the sanitation methods related to COVID-19? How have the methods been communicated to employees and other individuals?
    11. If the business is one covered by Appendix A, how is the employer complying with the specific Appendix A COVID-19 requirements and “applicable guidance” from OHA? How are periodic updates incorporated into workplace on an ongoing basis?
    12. In mixed employer settings, how are physical distancing, masks, sanitation requirements communicated and coordinated between all employers and their affected employees?
    13. How can employer implement controls that provide layer protection from COVID-19 hazards and that minimize reliance on individual EE training and behavior?

OR-OSHA has provided templates for conducting the Risk Assessment, which can be found here. Also, we recommend the following steps. The first step in the Risk Assessment is to identify the different facilities, work settings, and job functions in the workplace. An employer’s assessment must account for each different or unique facility, setting, or job function.

Next, the Rule provides that employers may accomplish the Risk Assessment, particularly the employee participation, through use of safety committees and meetings, collective bargaining (if a union represents employees), or other means. Importantly, employers must devise a means to conduct the assessment that does not exacerbate the hazard by calling large meetings of employees. Rather, employers should think of creative ways to gather feedback, such as virtual meetings, telephonic interviews, or electronic surveys or questionnaires. It is important that employees representing a diversity of job duties and functions across the workplace have given feedback to ensure a complete and thorough assessment.

The Rule also requires employers with more than 10 employees to document the following: (1) the name, job title and contact information of the person who conducted the Risk Assessment; (2) date the assessment was completed; (3) employee job classifications that were evaluated; and (4) summary of answers to each of the 13 exposure Risk Assessment questions. While the Rule does not specifically require that employers document the process in conducting the Risk Assessment, it is a good idea and it will assist employers in demonstrating their good faith efforts to comply with the Rule.

Finally, employers should be aware of some employment legal risks that may arise from the Risk Assessment. First, employees who are giving feedback about safety risk and concerns are likely engaging in protected activity and cannot be discriminated or retaliated against for reporting such safety concerns. Second, during the Risk Assessment process, it is likely that employees may bring up violations of the policies (examples of other workers not social distancing or managers not requiring customers to wear masks). If the employer receives these reports of violations, the employer should engage in their standard practices of investigation of workplace safety violations and take necessary remedial actions. Third, if employees disclose their medical conditions or disabilities during the assessment, the employer may need to follow up with the employee by engaging in the interactive process to determine if a reasonable accommodation is needed. Finally, employees should be paid for their time giving feedback as a part of the assessment. The employer can minimize additional expense by having employees participate during their work hours.

  1. Infection Control Plan

Along with the Risk Assessment, all employers must create an Infection Control Plan no later than December 7, 2020, one month after the Rule is adopted. For employers with more than 10 employees, this Plan must be in writing and available to employees. The goal of the Plan is to address and remedy the risks identified in the Risk Assessment. To do so, the Rule lays out six, mandatory elements that the Plan must cover, including:

  1. Job assignments or worker tasks requiring the use of PPE to minimize employee exposure to COVID-19
  2. Procedure to ensure adequate supply of masks, face coverings, and PPE to minimize employee exposure to COVID-19
  3. List and description of specific hazard control measures implemented
  4. Policies and requirements for wearing masks and face coverings in workplace, and method of informing individuals (including employees, customers, vendors, etc.) of the requirements
  5. Procedures for employers to communicate with employees (as well as other employers at multi-employer worksites) about an employee’s exposure to someone known or suspected to be infected with COVID-19 (i.e., contact tracing and notification procedures)
  6. Procedures to provide employees with information and training required by the Rule

Similar to the Risk Assessment, if an employer has multiple facilities that are substantially similar, the employer can make a plan for that type of facility, rather than site-by-site, as long as any site-specific information that affects exposure risks is included. OR-OSHA has not provided a template for the Infection Control Plan, so employers should keep an eye on the OR-OSHA website for further updates.

  1. Employee Training

By December 21, 2020, six weeks after the Rule is adopted, employers must provide workers with information and training covering (at least) 10 mandatory COVID-19 related topics. These topics range from general information about the signs, symptoms, and spread of COVID-19 to the employer’s processes and procedures for managing any workplace risks presented by the virus. The training can be provided in person or virtually. It can also be prerecorded, written, or in another form, so long as it conveys the required information to employees. Finally, the training must be in a language that the employees can understand, and employers must provide employees with an opportunity for feedback.

  1. COVID-19 Infection Notification Process and Medical Removal

The Rule also requires employers to establish a process to notify affected employees that they have had a work-related contact with an individual who tested positive for COVID-19 within 24 hours of being made aware of the circumstances. OHA and the CDC state that individuals who have been within six feet, for 15 minutes (cumulatively within a 24-hour period), of someone who tested positive for COVID-19 within two days of the positive test or symptom onset, should be notified of possible exposure and removed from the workplace. Even if employees have not been exposed to an infected person under these metrics, employers should still notify workers generally of a known positive COVID-19 test result in a certain workspace area or facility for purposes of transparency and to allow employees to ask questions and get feedback from the employer about the safety precautions taken. OR-OSHA has provided a model policy for notification of employees when COVID-19 exposure occurs.

The Rule also includes what employers must do when an employee is required to quarantine under the OHA and CDC’s guidelines. It says that the employer must “direct” the employee to isolate at home and away from other non-quarantined individuals. As long as the employer clearly states this directive, it is not responsible if the employee fails to follow the instructions, though the employer is responsible for making sure that the employee is not allowed at the worksite during the quarantine period. The Rule also requires employers to evaluate whether quarantined employees can work remotely, if they feel well enough to do so.

The Rules also prohibit employers from discriminating or retaliating against employees who are required to quarantine from the workplace. Moreover, employers must reinstate the employee to the same job they had before quarantine if it still exists (this means that if the position has been temporarily filled by another worker, the employee is entitled to get their job back).

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.

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