Josh Schultz, Esq.
Oregon OSHA Adopts Permanent Workplace COVID-19 Rule
On May 4, 2021, Oregon OSHA adopted a permanent rule governing COVID safety in the workplace, replacing the temporary rule which expired the same day. Under the Oregon Administrative Procedures Act, a temporary rule cannot be renewed or extended beyond 180 days, thus Oregon OSHA adopted the May 4th final rule in accordance with rulemaking procedures.
Oregon OSHA stated they will repeal the rule “when it is no longer necessary to address that pandemic.” Due to uncertainty about pandemic conditions, Oregon OSHA stated that they will consult with the Oregon OSHA Partnership Committee, the Oregon Health Authority, the two Infectious Disease Rulemaking Advisory Committees, and other stakeholders as circumstances change to determine when all or part of the rule can be appropriately repealed. This consultation will take place no later than July 2021, and will repeat every two months until the rule has been repealed.
The rule mirrors the temporary rule, which took effect November 16, 2020. Employers are required to carry out a comprehensive set of risk-reducing measures, including:
Employers must ensure six-foot distancing between all people in the workplace through design of work activities and workflow, unless it can be shown it is not feasible for some activities.
Employers must ensure that all individuals – including employees, part-time workers and customers – at the workplace, or other establishment under the employer’s control, wear a mask, face covering, or face shield in line with the Oregon Health Authority’s statewide guidance.
Employers must provide masks, face coverings, or face shields for employees free of cost.
Employers must maximize the effectiveness of existing ventilation systems, maintain and replace air filters, and clean intake ports providing fresh or outdoor air.
Employers must conduct a risk assessment – a process that must involve participation and feedback from employees – to gauge potential employee exposure to COVID-19, including addressing specific questions about how to minimize such exposure.
Employers must develop an infection control plan addressing several elements, including when workers must use personal protective equipment and a description of specific hazard controls.
Employers must provide information and training to workers about the relevant topics related to COVID-19. They must do so in a manner and language understood by workers.
Employers must notify affected workers within 24 hours of a work-related COVID-19 infection.
On May 13th, shortly after the final Oregon rule was adopted, the CDC issued updated guidance stating that fully vaccinated people no longer need to wear a mask or physically distance, including indoors. This guidance would conflict with the rule’s requirement that individuals at the workplace wear a mask. However, the CDC guidance specifically states that “fully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” Thus, employers may still enforce mask requirements and, in Oregon, are required by the rule adopted May 4th.