On August 17, 2020, Oregon OSHA released its draft temporary rules aimed at addressing the COVID-19 pandemic. Oregon OSHA will accept public comment on the proposed rules through Monday, September 7, and will implement the temporary rules – which will remain in effect for at least 180 days – no later than September 14.
Notably, the proposal has three tiers of safety rules: (1) rules applicable to all Oregon workplaces; (2) additional rules for workplaces with a “heightened risk” of exposure (i.e., where an employee’s job activity requires them to be within six feet of another individual for longer than 15 minutes and includes direct touching of the individual – this includes such employees as tattoo artists, massage therapists, barbers, beauticians, etc.); and (3) additional rules for workplaces with an “exceptional risk” of exposure, which includes employees involved in direct patient care; aerosol-generating healthcare or post-mortem procedures; emergency first responder activities; handling material that is reasonably anticipated to be contaminated with COVID-19; or handling human remains or tissue specimens or laboratory cultures collected from individuals suspected or known to have COVID-19.
While the scope of this article is limited to the rules applicable to all Oregon employers, businesses that employ individuals who are at “heightened” or “exceptional” risk for exposure are encouraged to contact their employment counsel for additional guidance.
As a starting point, the proposed rules applicable to all Oregon workplaces generally reflect the requirements and recommendations previously released by the Oregon Health Authority. For example, employers must ensure that the work activities and workplace are designed to eliminate the need for workers to be within six feet of another individual unless the employer determines and can demonstrate that such separation is “not a practical option,” in which case the employer must ensure that face coverings are worn and that as much distance as practical is maintained between individuals.
Notably, the proposed rules state that the six-foot distancing requirement is met when the employees are separated from other individuals by “an impermeable barrier that creates a ‘droplet buffer’ that provides at least six feet in distances between the mouths of the affected individuals. Such a droplet buffer must be calculated using the shortest distance around or through gaps in the barrier.” The proposed rules go on to provide specific examples of how employers in various industries may calculate and implement an acceptable “impermeable barrier,” including employers with production line workers, retail workers, and bank tellers.
The proposed rules also provide several requirements regarding face coverings. Specifically, the face coverings must be either medical grade masks, cloth masks, or a face shield that covers the forehead, extends below the chin, and wraps around both sides. Notably, face coverings with an exhalation valve do not meet the requirements, nor do devices that place shields only in front of the user’s nose and mouth. It also appears that the popular polyester neck gaiters, which have been the subject of recent scrutiny, are insufficient. Generally, and in addition to the six-foot rule, employees working in office settings must wear an acceptable face covering when not at their desk or seated in a conference room. Also, employees who transit together in a motor vehicle for work purposes must wear face coverings, regardless of the distance involved, unless all the individuals in the vehicle are members of the same household.
The proposed rules also require employers to ensure that all high-contact surfaces used by multiple employees are thoroughly cleaned at the beginning of each shift. And employers with at least 25 employees must designate one or more employees who will be responsible to assist the employer in identifying appropriate social distancing, proper face covering use, and sanitation measures and ensuring such policies and procedures are implemented. Significantly, this “social distancing officer” must have authority to take prompt corrective action or to implement measures to eliminate or otherwise minimize exposure to COVID-19.
Under the proposed rules, all employers must also implement various mechanisms to inform and train employees about the safety rules, including:
- Posting the “COVID-19 Hazards Poster” provided by Oregon OSHA in a “central location”;
- Notifying employees about the social distancing requirements and how they will be implemented and providing employees the opportunity to provide feedback through a social distancing officer and through a safety committee, an interactive safety meeting, or both;
- An explanation of the employer’s policies and procedures to report signs or symptoms of COVID-19; and
- Information about any paid leave to which employees would be entitled by company policy as well as the Families First Coronavirus Response Act (FFCRA).
Lastly, the proposed rules also include specific requirements all employers must observe in the event a medical provider or public health official recommends isolation or quarantine, including reassigning the affected worker to duties that don’t involve contact with other workers or the public. If reassignment is not possible, the employer must allow the workers to use leave under the FFCRA.
Significantly, the proposed rules also require employers who are not covered by the FFCRA (i.e., employers with 500+ employees), or who have “previously opted out of the paid sick leave provisions of the FFCRA,” to provide up to two weeks of paid reassignment leave “in addition to whatever benefits the worker would otherwise be entitled.” This reassignment leave would be provided at 40 hours per week for full-time employees, and on a pro-rata basis for part-time employees. The proposed rules also contemplate multiple exceptions, as well as job-protection and anti-retaliation rights.
It is currently unclear whether any modifications will be made to these proposed rules. However, employers interested in providing comment should move quickly as the September 7 deadline is rapidly approaching.