Oregon: OR-OSHA Issues New Permanent Rules for All Workplaces During COVID-19

By Heather J. Van Meter - Bullard Law

May 5, 2021

Oregon’s Occupational Safety and Health Division (OR-OSHA) issued its much-anticipated permanent rules for addressing COVID-19 at all workplaces in Oregon. Oregon Administrative Rule 437-001-0744 became effective on May 4, 2021.

The permanent rules replace the temporary COVID-19 workplace rules previously in place, which expired on May 4, 2021 (temporary rules are only allowed for 180 days). The permanent rules are similar but not identical to the previous temporary rules. While these rules are permanent, OR-OSHA has stated they will be withdrawn once they are no longer necessary – although no timeframe or guarantee has been given for their withdrawal.

The new permanent rules apply to all employees at all places of employment in Oregon.

All employees at all Oregon workplaces must:

a.  Practice physical distancing of at least six (6) feet unless it is not feasible for the job (e.g. hairstylists, medical care).
b.  Wear masks, face coverings, or face shields for everyone at all times unless under five years old, eating/drinking, showering, sleeping, only with other members of the same household (e.g., family businesses), brief removal for identity (e.g., banks, law enforcement), or if a disability prevents wearing them. [note: the rule vaguely says a reasonable disability accommodation does not mean outright exemption from face-covering requirements, however, state and federal disability law controls disability accommodations not OR-OSHA]. Employers must provide masks, face coverings, or face shields to employees for free. Employers can allow employees to use their own but are not required to do so. Employers must allow employees to use filtered respirators instead of masks/coverings/shields if the employee chooses to do so; however, the employer is not required to provide filtered respirators to employees. If an employee chooses to use a mask/covering/shield when not required to do so, the employer must allow the employee to use it. If sharing work vehicles or carpooling, from June 3, 2021 onward, the employer must find alternate means. Otherwise, the employees in shared vehicles must use masks/coverings/shields and must have windows open and must physically distance in the vehicle or use more than one vehicle.
c.  Workplaces must be cleaned and sanitized regularly in all common areas, shared equipment, high-touch surfaces. This must be done at least every 24 hours. Employers must allow employees time for and provide supplies for this cleaning and more frequent cleaning if the employee so chooses (employer must provide at least soap and water). Employers must also provide hand hygiene for employees (soap and water or hand sanitizer).
d.  Workplaces must have the “COVID-19 Hazards Poster” posted in central areas at all workplaces (available on the OR-OSHA website).
e.  Building owners/operators must post the “Masks Required” signs at all buildings (available on the Oregon Health Authority website).
f.  All workplaces must have routinely maintained and inspected all HVAC equipment and operate the HVAC to maximize outside air circulation. All employers must change air filters and clean the HVAC system at least quarterly. For employers with ten (10) or more employees, the employers must certify in writing by June 3, 2021 that the HVAC is operated in accordance with this requirement to the best of the employer’s knowledge (sample certificate available on OR-OSHA website), including the date and name of the certifier on the certification and keep the certification on file until this rule is changed/withdrawn.
g.  All employers must conduct a COVID-19 risk exposure risk assessment (if not already done pursuant to the temporary rule), including obtaining employee opinions and feedback (e.g., in a safety meeting). Employers with ten (10) or more employees must document the risk assessment in writing, including who performed it, the date, employee jobs evaluated, and responses to thirteen (13) specific questions as part of the risk assessment (listed in the rule). Importantly, the employer must, among other things, determine whether telework is possible, whether physical distancing is possible or if worksite redesign is needed, the possibility of staggered work shifts or reduction in employees at work, and use of personal protective equipment.
h.  Infection control plans must be in place and implemented based on the completed risk assessment (if not already done pursuant to the temporary rule). Infection control plans must include (1) a list of all jobs requiring personal protective equipment (PPE) such as respirators, (2) employer procedures for ensuring masks/coverings/shields and PPE are adequately supplied, (3) all hazard control measures implemented by the employer, the employer’s masks/coverings/shields requirements at the workplace, (4) how the employer will communicate exposure risks to employees, and (5) how the employer will train and educate employees. OR-OSHA has sample infection control plans on its website. Employers may use and follow materials from employer associations, licensing agencies, or franchisors as long as employee opinions and feedback were obtained (note: safety meeting minutes where this occurred should be retained). Employers with more than ten (10) employees and workplaces at exceptional risk (see definitions notes below) must document the infection control plan in writing and post a copy accessible to all employees at each workplace.
i.  All employers must conduct employee information and train on COVID-19 infection control (if not already done pursuant to the temporary rule). This information and training must include physical distancing requirements, mast/covering/shield requirements, sanitation requirements, symptom reporting procedures, infection notification process, medical removal process, and information on COVID-19 (OR-OSHA has sample training materials on its website for this information).
j.  All employers must have an infection notification process in place to notify any exposed employees (within six feet of an infected individual for 15 or more minutes) and notify all employees that an infected person was at the workplace. The notification process must provide for notification within twenty-four (24) hours of employer awareness (see also Oregon Health Authority Rule 333-018-0016).  OR-OSHA has a model procedure on its website.
k.  All employers must make space available for COVID-19 testing and free to workers if the Oregon Health Authority or a local public health agency requires it. Employers conducting testing on-site without a public health requirement must pay for the testing, employee time, and employee travel for testing.
l.  If the Oregon Health Authority, a local public health agency, or an employee’s medical provider recommends an employee be quarantined or isolated due to COVID-19, the employer must direct the worker to quarantine or isolate, including the employee being allowed to work from home if suitable work is available (filling the position with another employee is not allowed). Employers must also notify employees directed to quarantine or isolate that they are entitled to return to work to their previous job duties (if still available) without any adverse action. After June 3, 2021, employers must also notify employees in writing of their right to return to work and information on available paid time off, sick leave, or other benefits.
m.  Additional mandatory provisions apply to restaurants, bars, breweries/wineries, retail stores, personal services providers, construction, transit, sports, gyms/fitness centers, K-12 schools, child care/early education programs, veterinary clinics, law enforcement, emergency services providers/first responders, and custodial institutions.

Additional requirements apply for “workplaces at exceptional risk,” such as medical facilities and care homes, and mortuaries (see definitions notes below). These additional requirements include mandatory infection control training; additional infection control plan requirements; additional cleaning and sanitation requirements; healthcare personal protective equipment (PPE) supply and usage requirements; mandatory gloves, gowns, eye protection, barriers, and isolated rooms for all direct patient care providers to COVID-19 patients; additional HVAC and ventilation requirements including mandatory upgrades; and mandatory screening and triage for potential COVID-19 patients in healthcare settings.

Definitions notes: For all rules applicable to employers with more than ten (10) employees, the count includes temporary and part-time employees and includes anywhere in Oregon, not just per worksite. “Workplaces at exceptional risk” include any employees anywhere in Oregon where the job involves direct patient care, environmental decontamination from healthcare settings, direct services in residential care and assisted living facilities, first responders, personal care providers, including toileting and bathing, aerosol-generating healthcare or post-mortem activities, or handling of laboratory cultures or human tissues/remains of known or suspected COVID-19 persons.