New OSHA Rules to Protect Workers from Infectious Disease

In response to the COVID-19 pandemic, Oregon OSHA (OR-OSHA) is preparing rules to protect workers from infectious diseases. The rulemaking process has been dynamic, to say the least, which should not be surprising given the nature of the pandemic and the evolving science.

The original intent was to develop a temporary rule for healthcare and a separate temporary rule for general workplaces in July, and then to publish “near final” language for both rules in August, with an effective date of September 1, 2020. OR-OSHA is simultaneously working on language for a permanent rule, which is expected to require a longer process.

So, what happened to those temporary rules now that September has come and gone? We have seen several drafted versions that have changed significantly over time, ultimately leading to one temporary rule. There’s now a single temporary rule. This rule covers both general workplaces and those with “exceptional risk” (e.g., healthcare), and the new effective date for the temporary rule is November 16, 2020.

Here are some highlights from the rule.

All Workplaces

• Distancing: Ensure 6-foot physical distancing “…unless the employer determines and can demonstrate that such physical distancing is not feasible for certain activities.” The employer must ensure that all affected workers use masks or face coverings in any instance where employees and other individuals cannot be separated by at least 6 feet, whether indoors or outside.
• Masks/Face Coverings: Provide masks/face coverings at no cost to the workers. Individuals at the workplace or premises subject to the employer’s control must wear a mask, face covering, or face shield in accordance with the requirements of the Oregon Health Authority’s Statewide Mask, Face Covering, Face Shield Guidance. The rule includes requirements for masks when more than one employee is in a vehicle (unless they are members of the same household).
• Sanitation: Common areas and areas accessible to the public must be cleaned at least every 24 hours for workplaces occupied for fewer than 12 hours and at least every 8 hours for workplaces occupied for 12 hours or more. Workers must be provided with the necessary supplies and time to sanitize the work area if the worker chooses to do so. The rule also describes minimum requirements for cleaning areas that were occupied by people who were known or suspected to be infected with COVID-19.
• Signs: Employers must post a copy of the OR-OSHA “COVID-19 Hazards Poster.” Employees working remotely must receive a copy of the poster via e-mail or equally effective means.
• Building Operators: Employers that operate or otherwise control buildings where employees of other employers work must implement the sanitation requirements in common areas (to the extent that they control these areas) and post signs in areas where masks/face coverings are required.
• Ventilation Requirements:  Employers must maximize the amount of outside air circulated through the existing heating, ventilation, and air conditioning (HVAC) system(s), to the extent the system is capable of doing so, whenever there are employees in the workplace. Employers must also ensure the following:
  • Air filters are maintained and replaced as necessary.
  • Intake ports that provide outside air to the HVAC system are clean and properly maintained.
• Exposure Risk Assessment:  Employers must conduct a COVID-19 exposure risk assessment. The process must involve employee participation and feedback, and the assessment must be documented if the employer has more than ten employees in Oregon. The rule describes the items that must be addressed by the assessment.
• Infection Control Plan: Employers must establish and implement a facility-specific infection control plan, and the plan must be in writing if the employer has more than ten employees in Oregon. The required elements of the infection control plan are provided in the rule.
• Training: Employers must provide information and training covering the topics described in the rule.
• Notification: Employers must have a process to promptly notify employees if they had work-related contact with an individual who has tested positive for COVID-19.
• Testing: Employers must cooperate with public health officials who indicate that COVID-19 testing is necessary within the workplace.
• Medical Removal: Whenever public health officials or a medical provider recommends an employee be restricted from work due to quarantine or isolation for COVID-19, the affected worker must isolate at home, away from other non-quarantined individuals. Such restriction must continue until the employee’s medical provider or an appointed public health authority determines the employee can return to work. The employer must allow the affected employee to work at home if suitable work is available and the employee’s condition does not prevent it. The affected worker must be entitled to return to their previous job duties, if still available, without any adverse action. The rule does not require the employer to keep a job available that would not otherwise have been available had the employee not been quarantined or isolated, but it does mean that the employer cannot fill the job with another employee and thereby make it unavailable.
• Industry-/Activity-Specific Guidance: Appendix A of the rule includes a list of mandatory guidance for specific industries and activities.

Workplaces with Exceptional Risk

The rule includes additional provisions for workplaces considered to have exceptional risk, such as certain kinds of healthcare or emergency response activities. “Exceptional risk” does not apply to other departments and activities involving the same employers  that are not themselves involved in direct patient care or the other items included in the definition (e.g., a hospital accounting department). Additional requirements for workplaces with exceptional risk include:

• Infection Control Training: This training is above and beyond the general training required for all workplaces.
• Additional Infection Control Plan Elements
• Additional Ventilation Requirements: Existing ventilation systems in hospitals, ambulatory surgical centers, and long-term care facilities providing skilled and/or intermediate level nursing care must be operated in accordance with American National Standards Institute (ANSI)/American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE) Standards.. Existing ventilation in systems in other health care facilities must be upgraded to a minimum MERV 13 rating, provided that such an upgrade does not result in significant performance reduction of the system.
• Symptom Screening
• Barriers, Partitions, and Isolation Rooms: Employers must use barriers, partitions, and/or isolation rooms to protect workers from exposure to people with suspected or confirmed COVID-19.
• Personal Protective Equipment: The rule describes minimum requirements for selecting and using personal protective equipment in exceptional risk workplaces.
• Additional Cleaning and Sanitation Requirements
• Medical Removal

We understand that the process of developing a plan can be overwhelming. However, there are many great sources of information out there to help you. We advise you to start by reviewing the rule and public health guidance and thinking clearly about your goals. Then identify the people in your organization who can help develop and implement the plan.

MFA is available to help if you need it. Remember—this is about people, not paperwork. You cannot stray too far off the path if you focus on keeping people safe.