Take Action to Comply with OR-OSHA’s Final Temporary COVID-19 Safety Rules

On November 6, 2020, the Oregon Occupational Health and Safety Administration (“OR-OSHA”) published final temporary rules for workplace safety protections specific to COVID-19. The text of the final rules is available on OR-OSHA’s website.

The effective date for the new rules is November 16, 2020, although the timeline for different requirements under the rules varies. In addition, OR-OSHA is currently drafting various sample documents for use in implementing the new rules and requirements. Where the sample documents are available, we have posted a link. Others are not yet available, and we will post those links as soon as they are released. Finally, the new rules include COVID-19-related safety requirements specific to particular industries, including schools (public and private), restaurants, retail outlets, and construction sites.

Key new requirements include:

• By November 16, 2020
  • Post (and/or distribute electronically) a “COVID-19 Hazards Poster” available here.
  • Adopt a COVID-19 Infection Notification Process to notify exposed and affected employees of possible exposure within 24 hours of learning that an infected individual was in the workplace. OR-OSHA plans to publish a model procedure prior to November 16 but has not yet done so.

• By December 7, 2020
  • Conduct an Exposure Risk Assessment, which contains information about telework, physical distancing, face-covering requirements, infection notification, and other information, and which incorporates employee feedback. OR-OSHA’s sample form is available here.
  • Implement an Infection Control Plan (OR-OSHA sample Plan forthcoming) which includes a list of jobs that require specific PPE, plans for ensuring an adequate supply of PPE, hazard protection measures, and a communication plan.

• By December 21, 2020, conduct Employee Training regarding the Infection Control Plan and COVID-19. “optimize” air circulation in the workplace and ensure that the indoor air quality index at least “good” or “moderate.”

Following is more detail of the rules’ most critical provisions and when they go into effect.

With very limited exceptions, Oregon employers must adopt the following safety protocols:

Physical Distancing. Employers must ensure that their workplaces allow at least six feet of distance between employees, unless such distancing is not feasible for certain work-related activities.

Face Coverings. Consistent with the Oregon Health Authority’s (“OHA”) recent mandate, employers must ensure that all individuals (employees, contractors, visitors, etc.) at the workplace wear a mask, face covering, or face shield. Masks must be provided to employees at no cost. While employers must reasonably accommodate employees unable to wear a mask, the new rules specifically clarify that accommodation does not necessarily include exempting an individual from the face covering requirements, and further that face shields alone (without a mask or face covering) are not recommended.

Sanitation. Employers must sanitize all common areas, shared equipment, and “high-touch surfaces” (for example, countertops, doorknobs, and handrails) at least once every 24 hours if the workplace is occupied less than 12 hours a day or at least every eight hours if the workplace is occupied more than 12 hours a day. There is an exception for workplaces with only “drop in” availability or minimal staffing. In that instance, the employer may maintain a regular cleaning schedule and direct employees to sanitize their own work surfaces. In all instances, employers must provide employees with necessary cleaning supplies.

Posting Requirements. Employers must post OR-OSHA’s “COVID-19 Hazards” poster in a conspicuous manner. The poster is available on OR-OSHA’s website in English and Spanish. Employees working remotely must be provided with a copy of the poster electronically.

Building Operators. Employers that operate buildings where the employees of other employers perform work have special responsibilities to meet the rules’ sanitation requirements and to post signs regarding face-covering requirements. This must be completed by November 23, 2020.

Ventilation Requirements. No later than January 6, 2021, employers must “optimize” the amount of outside air circulating through the workplace whenever employees are present and ensure that the air quality index is at least “good” or “moderate.” However, employers are not required to install new HVAC equipment or operate their existing HVAC systems beyond their design capacity.

Exposure Risk Assessment. No later than December 7, 2020, employers must prepare a COVID-19 exposure risk assessment without regard for the use of face coverings. OR-OSHA has published a model risk assessment on its COVID-19 page. If an employer has more than one facility, its assessment may be developed by facility type rather than site-by-site as long as site-specific issues are addressed in the assessment. The risk assessment must involve feedback from employees and contain detailed information about such topics as employees’ ability to telework, distancing in the workplace, enforcement and notification of face-covering requirements, infection notification, use of physical barriers and modifications to HVAC systems, sanitation measures, and compliance with industry-specific requirements (see discussion below).

Infection Control Plan. No later than December 7, 2020, employers must implement an infection control plan based on their exposure risk assessment. The Plan must include a list of all job assignments that require use of COVID-19-driven personal protective equipment (for example, respirators), the procedures the employer will use to ensure an adequate supply of face coverings and other protective equipment and that the requirements are satisfied, a description of the hazard-protection measures the employer installed or implemented, the plan for communicating potential COVID-19 exposure to employees, and the procedure to be used to comply with the rules’ training requirements (see below).

Employee Training. No later than December 21, 2020, employers must provide employees with information and training regarding COVID-19. OR-OSHA will publish model training materials shortly. The trainings can be provided remotely, but must be done in a language understood by the employees and must offer employees the opportunity to provide feedback. Training must address the same topics addressed in the infection control plan.

Infection Notification Process. Employers must establish a process for notifying employees of potential workplace COVID-19 exposure within 24 hours. The employer must notify “exposed employees” (those who were within six feet of an individual who tested positive for COVID-19 for a cumulative total of 15 minutes) and “affected employees” (those who worked in the same facility or well-defined portion of the facility). The notification requirement applies regardless of face coverings or other personal protective equipment. This aspect of the rules does not apply in settings where patients are hospitalized on the basis of known or suspected COVID-19 infection. Once again, OR-OSHA will publish a model procedure.

COVID-19 Testing. Employers must make employees and appropriate space available for COVID-19 testing mandated by the OHA or local health authorities. If the employer mandates testing, it must cover the costs (including paying employees for testing and travel time). The employer is not required to cover any costs for voluntary testing by employees.

Medical Removal. Employers must direct employees to isolate at home whenever the OHA, the local health authority, or a medical provider recommends that the employee be restricted from work due to COVID-19 quarantine or isolation. Such employees must be allowed to work remotely if suitable work is available and the employee’s condition allows it. Further, employers must reinstate such employees to their previous job once the quarantine period ends (assuming the job is still available) and may not take adverse action against them because of the quarantine/isolation.

Exceptional Risk Workplaces

Additional safety protocols apply to “exceptional-risk” workplaces, which primarily consist of healthcare industry employers and providers of residential/assisted-living services. 

Infection Control Training. Exceptional-risk employers must conduct a much more detailed infection control training program and must conduct the training “live” with employees, although it may be conducted remotely.

Additional Infection Control Plan Requirements. Exceptional-risk employers must provide the name of the person responsible for administering the plan and must ensure that the person is knowledgeable in infection control principles as applied to the workplace. In addition, covered employers must reevaluate their plans “as frequently as necessary” to reflect changing conditions and employee feedback.

Additional Sanitation Requirements. Exceptional-risk employers must develop sanitation protocols that are consistent with Environmental Protection Agency guidance on COVID-19 disinfectants and Centers for Disease Control and Prevention guidelines.

Healthcare PPE. Exceptional-risk employers operating in the healthcare industry must provide employees with whatever combination of equipment is necessary and appropriate to protect employees from exposure given the nature of the care provided. For example, when an employee provides direct care to a patient known or suspected to have COVID-19, “the employer must provide the affected worker with gloves, a gown, eye protection (googles or face shield), and a medical-grade mask or a NIOSH-approved respirator.”

Ventilation Systems. Hospitals, ambulatory surgical centers, and long-term care facilities providing skilled or intermediate-level nursing care must “if possible” operate in accordance with 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 outdoor and total air ventilation in healthcare facilities. However, compliance does not require installation of new ventilation equipment. For all other healthcare facilities, the employer must upgrade its ventilation system to a minimum rating of 13 on the Minimum Efficiency Reporting Value scale, to the extent the employer controls the system and the upgrade will not result in a significant performance reduction.

Barriers and Partitions. Healthcare exceptional-risk employers must implement physical barriers to separate patients who are known or suspected to be infected with COVID-19. In addition, such patients must wear a face covering and be isolated in an examination room with the door closed unless an examination room is not immediately available. In that instance, the patient may not be allowed to wait within six feet of other patients and should be “encouraged” to wait outside or in his or her personal vehicle. To the extent patients cannot tolerate a face covering while care is being provided, the employer must impose physical distancing requirements and provide personal protective equipment to the extent necessary.

Employee/Visitor Screening. Healthcare employers must screen and triage all “individuals entering its healthcare setting.” At a minimum, the screening program must limit the number of points of entry to the portions of its facilities where patient care, aerosol-generating healthcare, or postmortem procedures are performed and must screen individuals for COVID-19 symptoms, for example, by asking them if they have been advised to quarantine because of exposure to COVID-19. 

Medical Removal. Healthcare employers must follow the usual medical removal rule, with the exception that OHA guidelines control for when a healthcare provider, emergency provider, or other healthcare worker who would otherwise be quarantined may remain on the job.

Industry Specific Requirements

Finally, the new rules include industry-specific requirements. Employers covered by one of the 19 separate appendices must comply with the general rules summarized above, unless the appendices contain specific contrary requirements. The covered industries are:

A-1: Restaurants, Bars, Brewpubs and Public Tasting Rooms at Breweries, Wineries and Distilleries
A-2: Retail Stores
A-3: Outdoor/Indoor Markets
A-4: Personal Services Providers
A-5: Construction Operations
A-6: Indoor and Outdoor Entertainment Facilities
A-7: Outdoor Recreation Organizations
A-8: Transit Agencies
A-9: Collegiate, Semi-Professional and Minor League Sports
A-10: Professional and PAC-12 Sports
A-11: Licensed Swimming Pools, Licensed Spa Pools and Sports Courts Mandatory Workplace Guidance
A-12: Fitness-Related Organizations
A-13: K-12 Educational Institutions (Public or Private)
A-14: Early Education Providers
A-15: Institutions of Higher Education (Public or Private)
A-16: Veterinary Clinics
A-17: Fire Service and EMS
A-18: Law Enforcement
A-19: Jails and Custodial Institutions

For the most part, the appendices expand on the rules’ basic requirements, for example, by specifying the content of signage related to COVID-19 safety practices in restaurants or further outlining cleaning and sanitation requirements for retail facilities. If your workplace is covered by one of the appendices, it is critical to review that Appendix in detail. 

Please contact us with questions about compliance with the new rules.