Oregon OSHA Temporary COVID-19 Rule to Take Effect November 16th

Starting November 16, 2020, all Oregon employers must comply with new OSHA regulations related to COVID-19. Among other things, these rules impose substantial requirements to conduct risk assessments, create infection control plans, and train employees—all on a tight timeline.

As we previously discussed, Oregon OSHA has been developing a temporary rule to address COVID-19 workplace risks. The final temporary rule was adopted on November 6, 2020, and is expected to stay in effect until May 4, 2021, when a permanent infectious disease rule will take its place.

The Temporary Rule Addressing COVID-19 Workplace Risks (Temporary Rule) provides tiered sets of workplace standards: 

• (1) General requirements for all Oregon workplaces; and
• (2) Supplemental requirements for workplaces at "exceptional risk," which include direct patient care, environmental decontamination services in a healthcare setting, direct client service in assisted living facilities, and personal care activities. 

The Temporary Rule also includes nearly 80 pages of detailed "Mandatory Workplace Guidance" for 19 categories of specific industries and activities such as retail, restaurants and other food or beverage establishments, personal services, construction operations, education, and more. Additional requirements apply to building operators related to common areas.

Workplace Design, Sanitation, and Safety

Under the Temporary Rule, all workplaces in Oregon must, among other things: 

• Design work activities and workflow in a way to ensure six-foot physical distancing between all individuals in the workplace unless the employer can demonstrate that the six-foot distance is not feasible for certain work activities;
• Provide masks, face coverings, or face shields to employees at no cost;
• Require masks, face coverings, or face shields in the workplace by all individuals in shared indoor work settings; outdoors whenever a six-foot distance cannot be maintained; and when employees are transported in a vehicle, unless everyone is wearing respirators or is from the same household;
• Regularly clean or sanitize all common areas, shared equipment, and high-touch surfaces every 24 hours or eight hours, depending on occupancy;
• Provide employees with supplies and time to sanitize and perform hand hygiene more frequently;
• Maximize ventilation in the workplace;
• Post OSHA signs on COVID-19 hazards; and
• Implement processes to notify employees if they have had work-related contact with someone who has tested positive for COVID-19 within 24-hours of learning of the positive test result.

Obligations to Assess, Plan, Train, and Communicate

Importantly, the Temporary Rule imposes mandates that all employers in Oregon conduct a COVID-19 exposure risk assessment and implement an infection control plan by December 7, 2020. Workplaces with more than 10 employees in Oregon must document their COVID-19 exposure risk assessment and infection-control plans in writing.

• Exposure Risk Assessment: Must address eight specific categories of questions. For example, this includes questions such as how employees have been empowered to telework; what the anticipated working distance is between employees and how that changes during certain work activities; how employees have been informed of workplace policies; and how ventilation and physical barriers have been used to minimize exposure.
  
  The assessment may differ based on facility and/or job description, meaning that most employers will be completing multiple assessments. The assessment must include adequate participation and feedback from employees. The assessment is due December 7, 2020, and Oregon OSHA has published a sample risk assessment form with these questions.
• Infection Control Plan: Must cover six required elements. For example, this includes identifying the procedures to ensure there is an adequate supply of masks, face coverings or face shields, and a description of specific hazard-control measures implemented. The infection control plan must be specific to the type of work performed by employees on a facility-by-facility basis or, if multiple facilities are substantially similar, by facility type—meaning many employers will be completing multiple plans.
  
  The plan is due December 7, 2020, and Oregon OSHA will make sample plans available. Employers must provide employees with specific information and training regarding COVID-19 by December 21, 2020; and the training must include an opportunity for employee feedback and cover at least 10 topics listed in the regulations. Oregon OSHA will provide sample training materials to help with some of the components.

Exceptional Risk Workplaces

The Temporary Rule imposes additional requirements for workplaces at "exceptional risk," including, among other things, settings where employees perform direct patient care in healthcare settings, direct client service in residential care or assisted living facilities, or in-home care. These regulations include: 

• Additional infection control training that is "live" (whether in-person or remote) so that employees may ask questions in the moment and allow "immediate response";
• Additional infection control plan requirements;
• Additional requirements for sanitation, personal protective equipment, and ventilation;
• Additional physical measures with respect to individuals known or suspected to be infected with COVID-19; and
• Screening requirements for individuals entering a healthcare setting.

Next Steps

Employers have detailed tasks ahead of them, particularly those with complex workplaces. Employers need to be aware of the upcoming deadlines and take necessary steps to satisfy the requirements or be subject to potential OSHA complaints, inspections or even penalties. Below is a summary of upcoming dates.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.