Adopted Rules update from Oregon OSHA

Oregon OSHA’s Amendment of Rules Addressing the COVID-19 Public Health Emergency in All Oregon Workplaces

Rulemaking Summary:

This rulemaking adopted permanent amendments to OAR 437-001-0744: Rule Addressing COVID-19 Workplace Risks to protect workers throughout the state given the current COVID-19 public health emergency, which has not abated in 2021.

Since it was first adopted as a permanent rule on May 4, 2021 (AO 2-2021), Oregon OSHA has filed three temporary amendments to the COVID-19 rule. The first of these changes (AO 5-2021), which occurred June 30, 2021, greatly reduced requirements as well as simplified the appendix given the low case load and high vaccination numbers at the time. Additionally, On July 19, 2021, Oregon OSHA published a Workplace Advisory Memo reducing requirements related to sanitation and physical distancing, with an additional update on August 13, 2021. After the surge of summer infections, the Governor and Oregon Health Authority (OHA) re-instated masking requirements with the adoption of OHA’s OAR 333-019-1025: Masking Requirements for Indoor Spaces and OAR 333-019-1015: Masking Requirements in Schools; Oregon OSHA updated its COVID-19 rule accordingly (AO 10-2021). The third and most recent change (AO 12-2021) adopted Medical Removal Protection Benefits for healthcare workers to ensure Oregon OSHA’s COVID-19 rule is as effective as federal OSHA’s COVID-19 Healthcare Emergency Temporary Standard (ETS). In the absence of adopting these temporary amendments as permanent provisions of OAR 437-001-0744, the rule would have reverted back to its original May 2021 requirements which are no longer in alignment with OHA public health guidance and federal OSHA requirements.

Four public hearings were held November 2, 3, 5 and 8 (Spanish), 2021. There was minimal testimony on the proposed amendments at the hearings, with a few comments on clarifying the infection notification requirement and establishing metrics for repeal. Instead, participants focused on the opportunity to ask questions and make comment regarding the federal OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (29 CR 1910.501, released November 5, 2021), and how it may potentially affect or interact with this rulemaking on OAR 437-001-0744 in Oregon.

The agency received more than 350 written comments on the proposed rulemaking during the comment period from September 30, 2021 to November 12, 2021. In general, a number of areas received considerable public comment, including the metrics and timeframe for repeal, Oregon’s high vaccination rate and if rules are still needed, the Oregon Health Authority’s facial covering requirements in schools and indoor workplaces, and the impact of the rule on businesses. While not included or addressed in this rulemaking, many commented with concerns about the federal vaccine mandate.

Oregon OSHA considered all comments received. Oregon OSHA, based on comments received, adjusted the proposed amendments to OAR 437-001-0744, Rules Addressing the COVID-19 Public Health Emergency in All Oregon Workplaces. A clarification was made pertaining to training requirements. In addition, minor changes were made to enhance readability. Most substantively, Oregon OSHA removed the reference to outdoor workplaces to align with current Oregon Health Authority (OHA) public health guidance regarding the application of OAR 333-019-1025:Masking Requirements for Indoor Spaces. OHA removed the provision requiring masking in outdoor spaces on November 23, 2021 through a temporary rule amendment.

The adopted amendments are as follows:

• Employers with employees working in indoor workspaces must implement the requirements of OAR 333-019-1025: Masking Requirements for Indoor Spaces, adopted by the Oregon Health Authority.

• The K-12 Educational Institutions (A-8) industry-specific guidance in the appendix was updated. Employers must ensure that the requirements of OHA’s OAR 333-019-1015: Masking Requirements in Schools and other employee protections imposed by OHA or the Oregon Department of Education are implemented and enforced in public and private K-12 schools.

• The physical distancing requirements previously found in OAR 437-001-0744(3)(a) are no longer in effect outside healthcare and transit settings.

• Except for healthcare settings, Oregon OSHA no longer requires employers to regularly clean or sanitize all common areas, shared equipment, and high-touch surfaces as defined by this rule that are under its control and that are used by employees or the public. All other sanitation requirements of OAR 437-001-0744(3)(c) remain in effect for all workplaces.

• In the appendix, the industry-specific guidance for Transit Agencies (A-5) and Emergency Medical Services (A-11) remains in place, with some modifications. Physical distancing guidance for Veterinary Clinics (A-10) is removed.

• The following appendix sections are simplified and updated to only include industry-specific masking exemptions: Personal Services Providers (A-3), Employers Operating Child Care and Early Education Programs (A-9); Law Enforcement Activities (A-12); and, Jails, Prisons, and Other Custodial Institutions (A-13).

• Oregon OSHA simplified the appendix, removing the specific requirements related to Restaurants, Bars, Brewpubs, and Public Tasting Rooms at Breweries, Wineries, and Distilleries (A-1); Retail Stores (A-2); Construction Operations (A-4); Professional, Division 1, Pac12, West Coast Conference and Big Sky Conference Sports (A-6); and Employers Operating Fitness-Related Organizations (A-7).

• In alignment with federal OSHA’s Emergency Temporary Standard (ETS) 29 CFR 1910.502, Oregon OSHA is proposing to adopt medical removal protection benefits in the healthcare sector. This provision provides some financial relief for workers in healthcare; as defined by the federal standard, when the need for medical removal is met under the requirements in the rule. This adoption was necessary to ensure that Oregon OSHA is “at least as effective as,” as federal OSHA as it relates to 29 CFR 1910.502 and OAR 437-001-0744. These benefits apply to specified employees in healthcare settings only.

Oregon OSHA has the authority to enforce rules adopted by other state agencies under ORS 654.025(3)(a). As stated previously, it is Oregon OSHA’s intent to repeal the entire rule once it is no longer necessary to address the COVID-19 pandemic in Oregon workplaces. Discussions continue with the Oregon OSHA Partnership Committee, the Oregon Health Authority, the two Infectious Disease Rulemaking Advisory Committees, and other stakeholders to determine when all or additional parts of the rule can be appropriately repealed.

Direct link to the rulemaking (notice letter, filing documents, and text of changes)

This is Oregon OSHA Administrative Order 14-2021, adopted and effective December 21, 2021.

Oregon OSHA contact: Matthew Kaiser, Salem Central Office @ 503-378-3272, or email at Matthew.C.Kaiser@dcbs.oregon.gov.

Please visit our website: https://osha.oregon.gov/rules/Pages/default.aspx, to view our adopted rules, or select other rule activity from this page.

About Oregon OSHA:

Oregon OSHA is a division of the Department of Consumer and Business Services, enforces the state’s workplace safety and health rules and works to improve workplace safety and health for all Oregon workers. For more information, go to osha.oregon.gov.

The Department of Consumer and Business Services is Oregon’s largest business regulatory and consumer protection agency. For more information, go to www.oregon.gov/DCBS/ or follow twitter.com/OregonDCBS.