Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On Friday, November 6, the Oregon Occupational Safety and Health Administration (OR-OSHA) released the final Temporary Rule Addressing COVID-19 Workplace Risks. The Rule takes effect November 16, 2020, and requires all employers operating in Oregon to comply with a number of COVID-19-related mandatory health and safety standards. In addition to clarifying standards on expected topics like physical distancing, face coverings, and workplace sanitation practices, the Rule requires (among other things) that employers conduct a COVID-19 exposure risk assessment, create an infection control plan, and establish a process to quickly notify employees if they have had work-related contact with someone who later tested positive for COVID-19. The Rule also places special requirements on workplaces with "exceptional risks" of exposure, such as direct patient care and emergency first responder activities.
The following briefly summarizes the requirements of the temporary OR-OSHA COVID-19 Rule:
Physical distancing: Employers must ensure that work activities and workflow are designed to keep employees at least six feet apart from each other while fulfilling their job duties, unless the employer can demonstrate that such physical distancing is not feasible.
Mask, face covering, or face shield requirements: Employers must ensure that all individuals (including employees, part-time workers, temporary laborers, customers, vendors, patrons, contractors, etc.) at the workplace or other premises subject to the employer’s control wear a mask, face covering, or face shield in accordance with Oregon Health Authority (OHA) guidelines. Those guidelines recommend that people wear a mask or face covering whenever six feet of distance cannot be maintained, such as in a restroom or break room. A mask, face shield or covering is not required if an individual is under five years old, is sleeping, actively eating or drinking, or engaged in an activity where wearing one is not feasible (such as during examinations of the face or when identity needs to be confirmed by visual comparison). In addition, the employer must provide masks, face coverings or face shields for employees at no cost to the worker. The Rule also mandates that when employees are transported in a vehicle for work purposes, regardless of the travel distance or duration involved, all occupants in the vehicle must wear a mask, face covering or face shield.
Cleaning and sanitation: Employers must regularly clean or sanitize all common areas, shared equipment and high-touch surfaces (as defined by the Rule) under its control that are used by employees or the public. Cleaning must occur at least every 24 hours for workplaces occupied less than 12 hours a day. If workplaces are occupied more than 12 hours a day, cleaning must be done every 8 hours. Employers must provide employees with sufficient hand-washing supplies and facilities, as well as supplies to clean work surfaces.
Posting Requirements: By November 16, employers must post the COVID-19 poster provided by OR-OSHA – available here (Spanish version) – in a conspicuous place in a central location. Employees working remotely must be provided with a copy of the poster through electronic or equally effective means.
Requirements for building operators: No later than November 23, 2020, building operators must ensure that the Rule’s sanitation requirements are implemented and that a copy of the “Masks Required” sign developed by the OHA is posted in any area where masks or face coverings are required.
Ventilation requirements: By January 6, 2021, employers must optimize the amount of outside air circulated through existing HVAC systems, and ensure proper maintenance and cleaning of the ventilation system's air filters and intake ports.
Exposure risk assessment: By December 7, 2020, all employers must conduct a COVID-19 exposure risk assessment. OR-OSHA has created a template for employers to use (available here) and has indicated that sample risk assessments will be made available to assist employers in completing this requirement. Employers with more than 10 employees statewide must document their exposure risk assessment in writing. The Rule specifies particular topic areas that risk assessments must address, including but not limited to anticipated working distances between employees, workplace modifications that can achieve sufficient physical distancing and sanitation measures to be implemented. Employers must give employees an opportunity to provide feedback regarding the risk assessment.
Infection control plan: By December 7, 2020, all employers must establish and implement an infection control plan based on risk factors specified in the Rule. Employers with more than 10 employees statewide must document their infection control plan in writing and ensure that a copy is accessible to employees at their workplace.
Employee training: By December 21, 2020, employers must provide workers with information and training regarding COVID-19, which must include physical distancing requirements; mask and face covering requirements; sanitation requirements; COVID-19 signs and symptom reporting procedures; COVID-19 infection notification process; medical removal of employee from the workplace; characteristics and methods of transmission of the SARS-CoV-2 virus; COVID-19 symptoms; and the ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the SARS-CoV-2 virus. Employees must be given opportunities to provide feedback. OR-OSHA will provide some materials for the training, but the training itself must be provided by employers (a virtual setting is acceptable).
Infection notification process: Employers must establish a process for notifying affected employees that they had a work-related contact with an individual who has tested positive for COVID-19 within 24 hours of the employer’s becoming aware of the presence of a COVID-infectious individual in the workplace.
Medical removal: Employees ordered to quarantine or isolate by a medical provider or local public official must be permitted to return to their previous duties, if still available, without any adverse action as a result of their participation in COVID-19 quarantine or isolation activities.
Exceptional Risk Workplaces
In addition to the above requirements, which are applicable to all workplaces, the Rule contains heightened requirements for “workplaces at exceptional risk,” defined as workplaces where employees perform job duties that include (among other things) direct patient care in a healthcare setting, residential or assisted living and in-home care services, and personal care activities that involve very close contact with an individual. Exceptional risk workplaces are subject to additional sanitation and ventilation requirements, as well as heightened infection control plan and training requirements. Employers with exceptional risk workplaces must provide additional personal protective equipment for employees, implement requirements regarding barriers, partitions, and airborne infection isolation rooms for individuals known or suspected to be infected with COVID-19, and conduct screening measures for signs of COVID-19 symptoms in individuals who enter healthcare settings.
Mandatory Guidance for Specific Industries and Activities
The Rule contains further mandatory workplace guidance for industries listed in Appendix A, including restaurants, bars, brewpubs and tasting rooms at breweries, wineries and/or distilleries, retail stores, outdoor/indoor markets, personal services providers, construction operations, indoor and outdoor entertainment facilities, outdoor recreation organizations, transit agencies, collegiate, semi-professional and minor league sports, swimming pools and spas, sports courts, fitness organizations, public and private K-12 schools and early education providers, colleges and universities, veterinary care providers, fire service and EMS, law enforcement, jails and custodial institutions.