Effective May 4, 2021, the Oregon Occupational Safety and Health Administration (“OR OSHA”) published its final rule requiring Oregon employers to continue to implement safety measures to protect against the spread of COVID-19. The final rule is available on OR OSHA’s website. Here is a summary of the permanent rule’s key provisions:
No Sunset Date for Final Rule. There is no date on which the final rule will automatically sunset. Rather, OR OSHA simply states that because “the purpose of this rule is to address the COVID-19 pandemic in Oregon workplaces . . . [OR OSHA] will repeal the rule when it is no longer necessary to address that pandemic.” Whenever that may be . . .
Infection-Notification Protocols Continue. The final rule continues the temporary rule’s requirement that employers establish a process for notifying employees of potential workplace COVID-19 exposure within 24 hours. Employers must notify “exposed employees” (those who were within six feet of an individual who tested positive for COVID-19 for a cumulative total of 15 minutes) and “affected employees” (those who worked in the same facility or well-defined portion of the facility). Employers can still rely on the model policy that OR OSHA published under the temporary rule.
Mandatory Physical Distancing and Face Covering Requirements Continue. The final rule retains basic requirements regarding physical distancing in the workplace and the mandatory use of face coverings, i.e., that employees generally must maintain six feet of distance from one another unless it is not “feasible” to do so and that employers mandate the use of masks, face coverings, or face shields for all employees and visitors within the workplace. OR OSHA also continues to allow the use of face shields, but notes that it “remains in ongoing discussions with the Oregon Health Authority” about the adequacy of face shields and reserves the right to enforce a strict prohibition against them should the Oregon Health Authority so advise.
Complying Employers Need Not Re-Complete Exposure Risk Assessments, Infection Control Plans, Training, or Posting Requirements. These requirements are identical to those that appeared in the temporary rules and that most employers have now fully complied with. In comments accompanying the final rule, OR OSHA advised that it mirrored the temporary rules on these requirements to make it clear that “actions completed under the temporary rule would not need to be revised or repeated” so long as they “have been completed in compliance with the temporary rule.”
Quarantine Work from Home Post-Quarantine Right to Return to Work. The final rule makes clear that employees who participate in quarantine or isolation for COVID-19 must be allowed to work at home if “suitable” work is available and the employee’s condition does not prevent it. In addition, employees who participate in quarantine or isolation must be notified of their right to return to their job (assuming it remains available) when their quarantine or isolation period ends. Effective June 3, 2021, the notification must be in writing. (We will post a sample notice on our blog as the June 3 date approaches.)
“Exceptional Risk” Workplaces and Industry-Specific Guidelines Continue. The final rule retains the complex set of requirements for so-called “exceptional risk” workplaces as well as industry-specific guidelines.
The final rule is lengthy, and particularly for employers subject to the exceptional risk or industry-specific requirements can be quite complex. Please do not hesitate to reach out to any of our attorneys if you have questions about compliance or best practices.