Oregon OSHA Updates You Should Know

[Announcement 2.2.21] - Oregon OSHA proposes permanent rule addressing COVID-19 in all workplaces
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Oregon OSHA is proposing a permanent rule that largely maintains – with some improvements – the risk-reducing measures required by the current temporary emergency rule. It would replace the temporary rule, which expires on May 4. The proposed permanent rule will receive virtual public hearings later this month and in early March. Although the rule must be adopted as a permanent rule because the law does not allow a temporary rule to be extended, Oregon OSHA expects to repeal the permanent rule once it is no longer needed to address the coronavirus pandemic. Read more.

Virtual public hearings will be held at 10 a.m. on Feb. 23 and Feb. 26, and at 5 p.m. on March 3 and March 4. ORLA encourages industry members to sign up for the hearings or for commenting on the proposed rule to share your experiences and perspectives. The comment period will close on April 2. Visit the OSHA website for details.

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[Update as of 1.11.21] - ​OSHA Puts Pause on Rulemaking

​ORLA, in collaboration with other business groups urged Oregon OSHA to make the temporary Infectious Disease rules permanent (read letter). Given how much time and resources businesses put into complying with the rules, now is not the time to make drastic changes. These temporary rules have only been in place since mid-November, and businesses need time to adjust before adding new regulatory burdens.

On January 11, OSHA backed down and said they will not pursue new changes to rules for COVID. The temporary rules will be the permanent rules until we get through the pandemic and then OSHA will rescind the permanent rule at that time and revisit.

• Visit OSHA's website for more information

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[Update as of 12.8.20] - Oregon OSHA Rule Updates: Grace Period Extended, Training Offered 

Grace Period
OR-OSHA will grant a 3-week extension to restaurants, gyms and other businesses impacted by the freeze/the new county risk levels. All other businesses are granted a 1-week enforcement grace period IF they are actively working to comply. Read memo from OR-0SHA.
 
Training Materials
OR-OSHA has released an online interactive education course designed to help employers meet four of the 10 training requirements found in their COVID-19 rules. The 1-hour course begins with an explanation of the dangers of COVID-19 and why the temporary rules were adopted. The course is then divided into four modules: Introduction; Signs, Symptoms and Transmission; Control Measures; and Conclusion. The course is available in both English and Spanish and should be incorporated with your other training planned under the rules. Find English Course and Spanish Course.
 
You can also download the presentation as a PowerPoint (scroll to bottom of page). While not required, OR-OSHA also included a model ‘training verification form’ for employees.
 
OR-OSHA also released completed Exposure Risk Assessment and Infection Control Plans over the weekend:

• Example Risk Assessment for Restaurant
• Example Risk Assessment for Manufacturer
• Example Infection Control Plan for Restaurant
• Example Infection Control Plan for Manufacturer

​Important Timelines to Remember:

• Base Rule: Effective November 16, 2020
  • Physical Distancing
  • Masks
  • Cleaning & Sanitation
  • Poster posted: Posters are available in English here and Spanish here.
• Building Operator Rules: November 23, 2020
• Exposure Risk Assessment: December 7, 2020*
• Infection Control Plan: December 7, 2020*
• Employee Training: December 21, 2020
• Ventilation Requirements (all workplaces): January 6, 2021

 
*Reminder you do not need to submit your Exposure Risk Assessment or Infection Control Plan to OR-OSHA for review. Your Infection Control Plan (if you have more than 10 employees or are an “Exceptional Risk Workplace”) needs to be available in writing to your employees at the workplace.
 
Helpful tools to-date:

• OSHA Poster and in Spanish
• Fillable Exposure Risk Assessment   (fillable version on landing page)
• Infection Control Plan here and in pdf form here
• Model Policy for Notification of Employees when COVID-19 Exposure and in Spanish
• Training Materials:
  • COVID-19 Fact Sheet has been released. Find that here.
  • Online training modules:
    • English Course
    • Spanish Course

[Update as of 11.6.20]
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The final OSHA Temporary Rule addressing COVID-19 has been released. As a reminder, as Temporary Rules these are allowed to be in effect for 180-days. A discussion about making them permanent (possibly expanded/revised) is expected to begin in the coming weeks.

• View the OSHA Temporary Rule (A1) Mandatory Guidance for Restaurants, Bars, Brewpubs, and Tasting Rooms

 
Effective Date: November 16, 2020 to May 4, 2021

• Physical Distancing
• Masks
• Cleaning & Sanitation 
• Poster posted: Posters are available in English and Spanish

 
Delayed Effective Dates:  

• Building Operators: November 23, 2020
• Exposure Risk Assessment: December 7, 2020
• Infection Control Plan: December 7, 2020
• Employee Training: December 21, 2020
• Ventilation Requirements (all workplaces): January 6, 2021

 
Several resources are now available online under “Documents,” with more on the way in the weeks to come. OSHA also offers consultation services and technical specialists to help employers comply with the requirements.

View the entire Temporary Rule here: https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf
 
View workplace chart for application here: https://osha.oregon.gov/rules/advisory/infectiousdisease/Documents/Overview-Table-for-Oregon-OSHA-COVID-19-Temporary-Rule.pdf
 
OR-OSHA also released a fillable Exposure Risk Assessment to download – for use by employers in their compliance. We expect additional training tools to be released in the coming weeks including, model Infection Control Plans, videos for use in employee training and a sample/model Employee Notification Policy.
 

Update as of 10.28.20
There is a lot going on right now at the Oregon Occupational Safety and Health Administration (OSHA) and we wanted to provide a direct update to summarize all the activity. There are 3 separate public processes occurring at Oregon OSHA. Please take a look below and click through on any link if the issue is one you wish to provide comment on. If you’re interested in ORLA's perspective on each item, see the “ORLA Notes” with each paragraph below.
 
(1) COVID-19 Temporary Rulemaking

Oregon OSHA has initiated a process to create an infectious disease control standard temporary rule for all workplaces in Oregon. The process has included taking Phase 2 guidelines for our industry from the Oregon Health Authority and housing them at Oregon OSHA in a temporary rule format. By law, temporary rules can last no longer than 180 days.

• ORLA Notes:
  • The OSHA process on this rule was replicating what our industry has already been adhering to in Phase 2 through the Oregon Health Authority guidelines. We have expressed ongoing concerns about the lack of clarity in language to allow for less than 6 feet of distance between parties as one party wearing face coverings briefly walks past other customers already seated. These are logical exceptions to 6 feet of distance between parties while parties are seated and aligns with the current exception needed for staff to deliver food to tables. The other issues of concern relate to the requirement of an “Exposure Risk Assessment” conducted by all employers as well as the development of an “Infection Control Plan.” Employers with more than 10 employees will be required to have both the risk assessment and control plan in writing. 
• OSHA Timeline:
  • They plan to take written stakeholder comments on their final draft through the end of the day on Friday, October 30, and to adopt the rule some time the week of November 2. That rule will take effect 10 days after adoption (although several specific items must be completed between one or two months after adoption, depending upon the specific issue). It will remain in effect 180 days from adoption, unless it is repealed sooner. Oregon OSHA has said they will immediately begin working on a permanent infectious disease rule that will include intermediate requirements specific to COVID-19 – that rulemaking will be subject to the full permanent rulemaking process required by the Administrative Procedures Act, including public comment and public hearings before a final decision is made. Information about this process can be found here. Your comments can be sent via email to: Tech.Web@oregon.gov.

(2) Penalties – Increasing Minimum and Maximum Penalties

At the same time – and completely unrelated to the COVID-19 pandemic or the COVID-19 temporary rulemaking, Oregon OSHA is coming to the end of an eight-month period of public comment on changes to the existing penalty rules, including an increase in the maximum penalties that align Oregon penalties with federal OSHA as directed by both Congress and the Oregon Legislative Assembly.

• ORLA Notes:
  • Regardless of when the process started and the rationale for aligning fines with federal OSHA, no fines should be increased on Oregon’s small businesses in the middle of a pandemic. This is an example of horrible timing and has brought about great frustration amongst operators trying to determine next steps for their business. Increased OSHA penalties are just another unnecessary issue we need you to take action on in opposition. 
• OSHA Timeline:
  • These rules were first proposed on February 26, 2020, with public hearings scheduled in March and April. As the COVID-19 emergency unfolded, Oregon OSHA issued a new proposal that was identical to the first but that extended the comment period. On July 30 and July 31, 2020, Oregon OSHA yet again issued the same proposal and extended the comment period through October 30, 2020. The rule record remains open and will be open through October 30.
  • Both the rulemaking notice and the text of the rule can be found under the notice labeled “*Re-Proposed* Increase of Certain Minimum and Maximum Penalties for Alleged Violations” online here. Your comments can be sent via email to: Tech.Web@oregon.gov.

(3) Employer Knowledge/Employer Responsibility

The Employer Knowledge rulemaking has been on a similar time frame as the Penalties Rulemaking, but they are actually two distinct rulemaking proposals.

In this rulemaking, Oregon OSHA proposes to add two definitions and a paragraph to the Division 1 rules. The Oregon Supreme Court in CBI Services v. Oregon OSHA determined that Oregon OSHA needs to more clearly define how “reasonable diligence” and “unpreventable employee misconduct” are interpreted and applied in enforcement activities and Oregon OSHA believes that such guidance is most appropriately provided through an administrative rule. The proposed additions to the rules are to clarify in general how Oregon OSHA assesses an employer’s reasonable diligence, what constitutes unpreventable employee misconduct, how Oregon OSHA assesses an employer’s knowledge of a violation, and when an employer is and is not responsible for a violation that has occurred on its worksite. After spending several years developing the proposal, Oregon OSHA is coming to the end of an eight-month period of public comment on these proposed changes.

• ORLA Notes:
  • Oregon OSHA has proposed new rules making employers responsible for all unsafe acts of anyone whom the Agency deems to be either an agent of the employer or a supervisory employee. The proposed changes will fundamentally alter the law on how the Agency can satisfy its burden of proving employer knowledge in order to sustain a citation. Oregon OSHA has asserted that these proposed rules were in response to the Oregon Supreme Court’s direction to the Agency in the Oregon Occupational Safety & Health Div. v. CBI Services, Inc., case. In the statement of need for the proposed rules Oregon OSHA asserted that the Supreme Court in CBI requested that the Agency provide guidance to the courts on its interpretation of both “reasonable diligence” and “unpreventable employee misconduct.” Nowhere in the CBI decision did the Court make any mention of unpreventable employee misconduct. 
  • The Supreme Court said in “CBI” it recognized the Oregon Safe Employment Act (OSEA) created a fault-based citation system. This meant that OR-OSHA had the burden to prove that cited employers had either actual or constructive knowledge of the alleged violative conduct or conditions to sustain a citation. “Constructive knowledge” meaning the employer could, with the exercise of reasonable diligence, have known of the violative conduct or conditions.  
  • Second, with regard to constructive knowledge, the Court requested input from Oregon OSHA as to how it interpreted the phrase “reasonable diligence” as used in ORS 656.086(2). This is the statute which implemented the legislative intent to create a fault-based citation system. This request was tied to the appellate court’s duty to review the Agency’s conclusion in a given case that under ORS 654.086(2) a cited employer had “constructive knowledge” of a violation. Rather than simply answer the Court’s constructive knowledge question, OR-OSHA is proposing rules that deem the knowledge of all “agents of the employer” and “supervisory employees” to be “actual knowledge” of the employer itself. The concept of reasonable diligence, of course, is irrelevant in cases where actual knowledge is present. The bottom line is that the proposed rules make employers strictly liable for the unforeseeable unsafe acts of most employees, including all unsafe acts of any employee acting in a supervisory or “lead” role.  
  • Simply put, there is no connection between what the Supreme Court asked OR-OSHA to do in CBI, and what OR-OSHA is attempting to do with its proposed rules. 
• OSHA Timeline:
  • These rules were first proposed on February 26, 2020, with public hearings scheduled in March and April. As the COVID-19 emergency unfolded, Oregon OSHA issued a new proposal that was identical to the first but that extended the comment period. On July 30 and July 31, 2020, Oregon OSHA yet again issued the same proposal and extended the comment period through October 30, 2020. The rule record remains open and will be open through October 30.
  • Both the rulemaking notice and the text of the rule can be found under the notice labeled “*Re-Proposed* Amendments in General Administrative Rules to Clarify Employer’s Responsibilities” online here. Your comments can be sent via email to: Tech.Web@oregon.gov.

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