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Oregon OSHA Adopts Its Own Workplace Virus Protection Rule (1)

Nov. 7, 2020, 1:56 AM; Updated: Nov. 7, 2020, 2:14 AM

Oregon on Friday became the third state in the nation to adopt a coronavirus-specific workplace safety standard in the absence of the federal Occupational Safety and Health Administration enacting an emergency rule that would apply to employers nationwide.

The rule takes effect Nov. 16. Many provisions that require employers to take actions they may not have already been performing, such as creating a risk assessment, will be phased in through January.

Oregon’s emergency rule is expected to stay in effect for at least six months, or until it’s replaced by a permanent regulation next year. It requires employers to assess risks their workers face from Covid-19 and to develop an infection control plan.

Virginia and Michigan have enacted similar rules, and California is likely to adopt a rule by early December.

Oregon’s Occupational Safety and Health Administration released the full text of the rule early Friday evening.

The state has recorded 47,839 confirmed cases of Covid-19, and 710 deaths as of Friday, according to Bloomberg News data.

Criticism of New Standard

Business and worker advocacy groups have issues with the temporary rule. For one, employers already complying with Oregon Health Authority mandates now have a new set of requirements. Worker representatives see the rule as allowing employers in some cases to choose less-protective options.

Matt Calzia, a nurse and consultant with the Oregon Nurses Association, said he’s concerned with the rule’s “very ambiguous language.”

“It’s a lot of ‘may’ and very little ‘shall,’” Calzia said.

For example, the rule requires employers to supply protective clothing to workers providing direct care to patients with confirmed or suspected Covid-19 infections, but it gives them the option of providing federally approved respirators or loose-fitting masks.

Jessica Giannettino Villatoro, political director of the Oregon AFL-CIO, said the rule could have set stricter requirements for ventilation systems, especially for industries that have experienced high infection rates, such as food processing and corrections.

From the employer’s side, Paloma Sparks, vice president and general counsel of the advocacy group Oregon Business & Industry, said Oregon OSHA should use a “commonsense approach to enforcement” and not penalize businesses if they haven’t been able to meet rule requirements because of supply shortages or because qualified outside consultants aren’t available.

The main enforcement requirement employers aren’t already dealing with, Sparks added, will be the rule’s requirements for a written risk assessment.

Enforcement Options

Oregon employers have two months to conduct mandatory Covid-19 assessments of risks their workers face and have an infection control plan in place, according to the rule. Employers with more than 10 workers must have written assessments and infection control plans.

The standard was initially proposed by Oregon OSHA on June 27. At first, the agency hoped to have it in place by Sept. 1. But delays in developing guidance for employers on complying with the rule and coordinating with health agencies pushed back the adoption date.

Oregon OSHA could enforce the rule through inspections prompted by workers’ complaints; information from other agencies, such as health departments; or through regular inspections where employers could be asked to prove they are complying, such as by providing written plans and training records.

Employers could be fined up to $12,675 for a serious violation and up to $126,749 for a repeat or willful violation—the same limits that apply to other Oregon OSHA standards.

The new rule sets several other compliance deadlines with employers that are listed in an “exceptional risk” category, such as health-care providers, nursing homes, police and other emergency first responders, and funeral homes. Employers in that group face the most stringent mandates.

The rule also includes lengthy appendixes with detailed “mandatory guidance” for protective measures that businesses and public agencies in 19 groups must follow and instructions for using respirators.

Compliance Deadlines

Building operators by Nov. 23 must begin cleaning and sanitizing common areas such as lobbies, bathrooms, elevators, and conference rooms every eight or 24 hours depending on how many hours each day workers use the areas.

Building operators also must post signs reminding people that wearing masks is required.

By Dec. 7, employers must have conducted a risk assessment and created an infection control plan. Training to comply with the plan must be completed no later than Dec. 21.

Clean Air

Employers must ensure their building’s ventilation systems meet the standard’s requirements by Jan. 6. Employers must maximize the amount of outside air circulated through the building “to the extent the system is capable of doing so, whenever there are employees in the workplace.”

Health-care employers whose workers meet the exceptional risk criteria should try to meet ventilation standards set by the American Society of Heating, Refrigerating, and Air Conditioning Engineers for health-care buildings.

The rule clarifies that the “exceptional risk” classification only includes departments that are involved in direct patient care. Other departments, such as a hospital accounting department, aren’t considered exceptional risk.

(Adds compliance deadlines)

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com

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