As many of you know, effective November 16, 2020, the Oregon Occupational Safety and Health Administration (“OR OSHA”) adopted a comprehensive set of workplace safety rules designed to address the COVID-19 pandemic. (More information about the rules is available here, here and here). These temporary rules remain in effect until May 4, 2021. Late last week, OR OSHA published its final draft of proposed permanent COVID-19 safety rules, which, as of May 4, 2021, will replace the temporary rules.
The proposed final rules are very similar to the temporary rules. Key provisions of the proposed final rules are:
COVID-19 Vaccines. This is the most significant difference between the temporary rules and the permanent rules, as the vaccine was not available at the time OR OSHA published the temporary rules. Under the draft permanent rules:
- The employer must make its employees and adequate space available whenever a local public health agency or the Oregon Health Authority determines that it is necessary to administer the vaccine in the workplace.
- If the employer mandates the vaccine, it must cover costs associated with the vaccine and pay employees for time associated with receiving it. Otherwise, the cost belongs to the employees and the employees need not be paid for the time.
- Unless a local public health agency or the Oregon Health Authority directs otherwise, employers are not required to mandate the vaccine. The proposed rules state that if the employees decline the vaccine, the employer must document the declination. It is unclear whether this obligation applies when the vaccine is mandated by the employer only, and not by a local public health agency or the Oregon Health Authority.
Mandatory Physical Distancing and Face Coverings. As with the temporary rules, employers must enforce six-foot distancing rules and ensure that all employees, vendors, customers, etc. wear face coverings on the premises.
Exposure Risk Assessment, Infection Control Plan and Posting Requirement. Employers must prepare location-specific risk assessments and infection control plans, as well as post OR OSHA’s COVID-19 Hazards Poster, available here. This aspect of the final rules is virtually identical to the temporary rules.
Employee Training. The proposed final rules, like the temporary rules, contain an employee training requirement. However, the final rules suggest that if an employer already completed mandatory training under the temporary rules, it need not do so again but must keep employees up to date on changes to safety plans.
“Exceptional Risk” Workplaces and Industry-Specific Rules. The proposed final rules create special obligations for exceptional risk workplaces (in particular, health care employers) and certain industries. Again, this aspect of the final rules largely tracks the temporary rules.
How long will the proposed permanent rules remain in effect? OR OSHA does not specify an end date because, like for so many of us, OR OSHA cannot predict how long COVID-19 precautions will be necessary. Here is what OR OSHA has to say about the rules’ duration:
Note: Although the rule must be adopted as a permanent rule, its purpose is to address the COVID-19 pandemic. Oregon OSHA intends to repeal the rule when it is no longer necessary to address that pandemic. Because it is not possible to assign a specific time for that decision, Oregon OSHA will consult with the Oregon OSHA Partnership Committee, the Oregon Health Authority, and other stakeholders as circumstances change to determine when all or part of the rule can be appropriately repealed.
To reiterate: these are OR OSHA’s proposed final rules. The deadline to submit comments about the proposed rules is April 2, 2021. OR OSHA will also hold public hearings about the rules via videoconference on February 23, February 26, March 3 and March 4. More information about how to submit comments and participate in the hearings is available through OR OSHA’s website.
If you have any questions about the draft final rules, or about workplace safety practices in general, please contact any of our attorneys.