Oregon OSHA Releases Improved Final Rule on COVID-19 Workplace Regulation

Modifications to the prior rule include changes to requirements regarding face coverings, transportation of employees, cleaning and sanitation, and more.

5/11/2021

Editor’s note: The following information is contributed by credit union law firm, Farleigh Wada Witt.

Last November, Oregon OSHA introduced its temporary rule for the COVID-19 workplace, imposing strict requirements upon employers, including face-covering guidance, training, and risk assessment plans (with inconvenient deadlines like Dec. 24 and Dec. 31).

As a temporary rule, the rule had to expire on May 4, and earlier this year, Oregon OSHA tried to impose a similar permanent rule which (1) imposed more onerous obligations related to certain safety protocols; and (2) failed to address that our communities are in a very different place than they were last November regarding COVID-19 risk. Fortunately, Oregonians were paying attention and called out the disconnect between the proposed permanent rule and the actual safety risks of our communities. Oregon OSHA received a record number of complaints and a petition signed by over 60,000 individuals objecting to the proposed rule. As a result, Oregon OSHA released a modified final rule on May 4, which excluded a number of the more onerous requirements contained in the draft rule.

Permanent Rule

This rule largely continues the status quo and does not truly address the reduction of risk employees will face as vaccinations rates continue to grow. While the new rule is permanent, Oregon OSHA responded to the criticism and developed a plan to review the ever-changing impact of the COVID-19 pandemic on the workplace to determine if all or part of the rule should be repealed. The committee will meet for the first time in July 2021 and then will continue to meet and reconsider the rule every two months and base its decisions in part on the then current infection rates, vaccination rates, test positivity rates, and hospitalization rates. The rule became effective on May 4, the date that it was released.

Requirements

Many of the requirements are similar to the original rule but are less onerous than the proposed permanent rule. Out of the twelve categories of requirements, the following do not require any further action if your credit union has already instituted the practice or completed the task: (1) physical distancing; (2) postings of the COVID-19 Hazards Poster: (3) Exposure Risk Assessment; (4) Infection Control Plan; (5) Employee Information/Training; (6) COVID-19 Infection Notification Process; (7) COVID-19 Testing for Workers; and (8) Medical Removal.

Modifications to the Prior Rule 

Face-Coverings 

One of the more notable differences relates to mask/face-coverings or face shield requirements. Although the changes are not yet effective. Currently, the Oregon Health Authority guidance on face coverings which requires a face covering unless an employee is in a “private workspace” is still in effect. Oregon OSHA received a lot of negative feedback on this requirement because it does not acknowledge the size and space of certain workplaces, which can vary from airport hangars to building lobbies to credit union branches. To address these issues, the new rule provides: “in the absence of applicable Oregon Health Authority requirements (for example in a correctional facility)” employers must comply with new relaxed requirements. Oregon OSHA specifies in the rule that it expects OHA face-covering guidance to “evolve” as circumstances of the pandemic change (for instances as more Oregonians are vaccinated). When the OHA guidance no longer requires private workspaces to remove face-coverings, credit unions will need to take steps to ensure that “individuals” (including employees and members) wear a face-covering:

(i) when working outside where the work requires employees to be within 6 feet of other individuals;
(ii) when working inside where 6 feet of distance between employees and other individuals cannot be consistently maintained: or
(iii) when an employee shares a room with one or more other individuals and the total enclosed area of the room does not provide at least 100 square feet per person.”

These modifications are intended to address the larger open spaces in which many of us work which do not qualify as “private workspaces.” Depending on the spacing between the employee’s workstations and the amount of space in a room, many employees under this new rule can remove a face-covering if they can “consistently maintain six feet from others.” This will be a welcome relief for many. For branches, the 100-square-foot requirement may still require tellers and member facing employees to wear a face-covering. While Oregon OSHA does not spell out how to ensure the 100-square-foot requirement, we can surmise that a 10-foot space in front, behind, and to each side of the employee is a good measurement.

The rule reminds employers that while an employer must provide reasonable accommodations to employees who have a disability and are unable to wear a face-covering, such an accommodation does not include simply exempting the employee from the requirement to wear a face-covering. We suspect that this tenet may be one of the first to be modified if the employee with a disability can prove that they are fully vaccinated.

Transportation of Employees

New to the rule is that effective June 3, if employers are going to have employees transported by vehicle for work purposes, then the employers must employ the “hierarchy of hazard controls” to minimize exposure. This includes considering alternatives to sharing a vehicle, the requirement of wearing face-coverings; increasing outside air flow, and separation of individuals in the vehicle must be maximized.

Cleaning and Sanitation

This rule has been relaxed but still requires employers to regularly clean or sanitize all common areas, shared equipment, and high touch surfaces at least once every 24 hours.

Routine Ventilation Maintenance and Evaluation

By June 3, all employers with more than 10 employees statewide will need to certify in writing that they are operating their HVAC system in accordance with the rule, to the best of their knowledge. Oregon OSHA will have a sample certification form. The rule requires credit unions to optimize the amount of outdoor air circulated through the HVAC system. Also, on a quarterly basis, starting no later than June 3, employers will need to ensure that all air filters are maintained and replaced as necessary to ensure proper function of the ventilation system, and all intake ports that provide outside air to the HVAC system are cleaned, maintained, and cleared of debris.

Retail Establishment

The Appendix for Retail Establishments has been revised from the original rule and simply reiterates the need to determine and enforce maximum occupancy to ensure appropriate distancing and the need to post signage. Otherwise, the Oregon Health Authority’s Sector Guidance for Retail Establishments was last updated on April 29 (Retail Establishments) and continues to apply without significant change.

For any questions on how to comply with these ever-changing rules, please contact Farleigh Wada Witt’s Employment attorneys Kelly Tilden, Kim McGair, and Trish Walsh.