Oregon OSHA Set to Finalize 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.

Oregon OSHA’s Temporary Workplace Safety Rules were finalized on November 6. See our article here for the most up-to-date information.

By Kristin Bremer Moore and Megan Reuther

On October 23, 2020, Oregon Occupational Safety and Health Agency (OR-OSHA) issued its fourth draft of the Temporary Oregon OSHA COVID-19 Rule (the Rule) aimed at addressing the effects of the pandemic on the workplace. The comment period for this latest draft closed on October 30, and OR-OSHA has stated that it intends to adopt the rules this week on November 5. Unless otherwise indicated, the Rule’s provisions will take effect 10 days after adoption. However, this timeline is subject to change, and, for that reason, Oregon employers should monitor OSHA’s webpage closely and/or sign up for email alerts.

Notably, 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 are defined by the rule as workplaces that 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.

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 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 carriers, 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.) Vehicles used for work are limited to half of their legal passenger capacity or two, whichever is higher. This means a vehicle with a two-passenger limit may carry two individuals, and one with a six-passenger limit may carry three individuals. 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. Generally, in addition to the six-foot rule and with limited exceptions, all individuals age of 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.

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 must use disinfectants that are approved by the EPA for the SARS-CoV-2 virus) and compensate employees for the time spent cleaning. Common areas including lobbies, reception area, waiting rooms, bathrooms, break rooms, 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 counter-tops, credit card terminals, door knobs, 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 access to 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, within two months of the adoption of the Rule, “maximize the amount of outside air” circulated through the HVAC system, “to the extent the [existing] system is capable of doing” 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 forthcoming COVID-19 Hazards Poster 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.

2. Risk Assessment

No later than 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. 1. Can EEs telework or work from home? How are employees encouraged or empowered to do so?
   2. What are the routine work distances between employees? Does this change during non-routine work activities?
   3. What are the routine 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 six 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 are the policy and procedures for reporting COVID-19 signs and symptoms? How are 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, and 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 stated that it will provide templates for conducting the Risk Assessment, but until those have been issued, 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 10 or more 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.

3. Infection Control Plan

Along with the Risk Assessment, all employers must create an Infection Control Plan no later than one month after the Rule is adopted. For employers with 10 or more 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.

4. Employee Training

Within 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.

5. 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.

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).

The fourth version of the Rule is expected to have some modifications according to the comments OR-OSHA received. If the modifications are minor, then OR-OSHA has stated that the Rule will be adopted on November 5. Employers should watch for updates carefully in the coming days.

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.

Please consider attending our upcoming webinar How to Implement OR-OSHA’s COVID-19 Rule on November 10.