OSHA Adopts Final Temporary COVID-19 Rules

On November 6, OSHA adopted the much awaited temporary COVID-19 related rules. The temporary rules establish new health and safety requirements for all workplaces and additional requirements for certain types of work such as in healthcare. For the most part, the rules shift existing OSHA guidelines into mandatory requirements for all workplaces and establish specific deadlines for compliance.

Many aspects of the new rules will take effect Monday, November 16, 2020, including the following:

Physical distancing. “All employers must ensure that both work activities and workflow are designed to eliminate the need for any employee to be within 6 feet of another individual in order to fulfill their job duties unless the employer determines and can demonstrate that such physical distancing is not feasible for certain activities.”

Mask, face covering, or face shield requirements. “Each employer must ensure that all individuals (including employees, part-time workers, temporary laborers, customers, vendors, patrons, contractors, etc.) at the workplace or other premises subject to the employer’s control wear a mask, face covering, or face shield as source control in accordance with the requirements of the Oregon Health Authority’s Statewide Mask, Face Covering, Face Shield Guidance. The OHA guidance states, “Masks, face coverings or face shields are strongly recommended in all indoor work spaces, but not required when at or in a location where the employee, contractor or volunteer does not have a job that requires interacting with the public or with other employees, such as a large warehouse and at least six (6) feet of distance can be maintained between other people. When six (6) feet of distance cannot be maintained, such as in a restroom or break room, masks, face coverings or face shields are required.

Also consistent with OHA guidance it is strongly recommended, but not required, that individuals wear a mask or face covering as source control rather than relying upon a face shield alone. Face shields are normally used as protection for the face and eyes but are a compliant (although not preferred) means of “source control” in relation to COVID-19.”

Masks, face coverings or face shields are not required while eating or drinking.

Supplying masks, coverings or shields. “The employer must provide masks, face coverings, or face shields for employees at no cost to the worker. If an employee chooses to wear their own mask, face shield, or face covering instead of those provided by the employer, the employer may allow it but is not required to do so unless the employee chooses to wear a respirator under the “voluntary use” provisions of the Respiratory Protection standard (29 CFR 1910.134).”

Cleaning and sanitation. The employer must regularly clean or sanitize all common areas, shared equipment, and high-touch surfaces. Such regular cleaning or sanitization must be implemented based on the following frequencies: (i) At least once every 24 hours if the workplace is occupied less than 12 hours a day; or (ii) At least every 8 hours while in use, if the workplace is occupied more than 12 hours a day.

Employers must provide employees with the supplies (soap and water) and the reasonable time necessary to clean or sanitize more frequently than would otherwise be required if the worker chooses to do so.

Posting requirements. The “COVID-19 Hazards Poster,” provided by Oregon OSHA must be posted in a conspicuous manner in a central location where workers can be expected to see it (for example, a location where employees report each day or at a location from which employees operate to carry out their activities). Employees working remotely must be provided with a copy of the COVID-19 Hazards Poster through electronic or equally effective means.”

COVID-19 infection notification process. The employer must establish a process to notify exposed employees (those who were within 6 feet of a confirmed COVID-19 individual for a cumulative total of 15 minutes or more, regardless of whether one or both of them were wearing source control) that they had a work-related contact with an individual who has tested positive for COVID-19, as well as to notify affected employees (those who worked in the same facility or in the same well-defined portion of the facility such as a particular floor) that an individual who was present in the facility has confirmed COVID-19).

This notification process must include the following elements: (A) A mechanism for notifying both exposed and affected employees within 24 hours of the employer being made aware that an individual with COVID-19 was present in the workplace while infectious or otherwise may have had work-related contact with its employee(s) while infectious; and (B) This notification process must be established and implemented in accordance with all applicable federal and Oregon laws and regulations.

Medical removal. Whenever the Oregon Health Authority, local public health agency, or medical provider recommends an employee be restricted from work due to quarantine or isolation for COVID-19, such as through identification during contact tracing activities, the affected worker(s) must be directed to isolate at home and away from other non-quarantined individuals.

Whenever an employee participates in quarantine or isolation for COVID-19, the employer must allow the affected employee(s) to work at home if suitable work is available and the employee’s condition does not prevent it.

Whenever an employee participates in quarantine or isolation, whether as a result of the requirements of this rule or because the employer chooses to take additional precautions, the affected worker(s) must be entitled to return to their previous job duties if still available and without any adverse action as a result of participation in COVID-19 quarantine or isolation activities.

In addition to these requirements, there are several more deadlines employers need to meet to comply with the new rules:

By December 7, 2020: Complete an Exposure Risk Assessment (Written if 10 or more employees). This assessment must be made without regard to the use of personal protective equipment, masks, face coverings, or face shields.

If an employer has multiple facilities that are substantially similar, its assessment may be developed by facility type rather than site-by-site so long as any site-specific information that affects employee exposure risk to COVID-19 is included in the assessment.

The exposure risk assessment must involve participation and feedback from employees. This feedback may be achieved via a safety meeting, safety committee, supervisor, process negotiated with the exclusive bargaining agent (if any), or any other similarly interactive process.

Each employer with more than ten employees statewide (including temporary and part-time workers) or that is covered by (1)(c) of this rule (workplaces at exceptional risk) must record their COVID-19 exposure risk assessment in writing by documenting the following information:

(i) The name(s), job title(s), and contact information of the person(s) who performed the exposure risk assessment; (ii) The date the exposure risk assessment was completed; (iii) The employee job classifications that were evaluated; and (iv) A summary of the employer’s answers to each of the applicable exposure risk assessment questions in this subsection.

Employers will be responsible for answer 13 questions related to COVID-19 exposure risks. A copy of a template for the written assessment can be found here.

By December 7, 2020: Create and Infection Control Plan (Written if 10 or more employees). All employers must establish and implement an infection control plan based on the risks identified the exposure risk assessment that implements the controls including, but not limited to, ventilation, staggered shifts, redesigning the workplace to accommodate physical distancing, reducing use of shared surfaces and tools, limiting the number of employees and other individuals in work areas, personal protective equipment, etc.

If an employer has multiple facilities that are substantially similar, its infection control plan may be developed by facility type rather than site-by-site so long as any site-specific information that affects employee exposure risk to COVID-19 is included in the plan. Employers must ensure that a copy of the plan is accessible to employees at their workplace.

At a minimum the plan must address the following:

1. A list of all job assignments or worker tasks requiring the use of personal protective equipment (including respirators) necessary to minimize employee exposure to COVID-19
2. The procedures the employer will use to ensure that there is an adequate supply of masks, face coverings, or face shields and personal protective equipment (including respirators) necessary to minimize employee exposure to COVID-19;
3. A list and description of the specific hazard control measures that the employer installed,
4. A description of the employer’s COVID-19 mask, face covering, and face shield requirements at the workplace, and the method of informing individuals entering the workplace where such
5. The procedures the employer will use to communicate with its employees and other employers in multi-employer worksites regarding an employee’s exposure to an individual known or suspected to be infected with COVID-19 to whom other workers may have been exposed. This includes the communication to individuals identified through COVID-19 contact tracing and general communication to the workplace at large; and
6. The procedures the employer will use to provide its workers with the initial employee information and training required by this rule.

By December 21, 2020 – Employee Information and Training. This information and training can be provided remotely or using computer-based models but must be provided in a manner and language understood by the affected workers. Employers must ensure that the training provides an opportunity for feedback from employees about the topics covered in the training, which must include at least the following elements:

1. Physical distancing requirements as they apply to the employee’s workplace and job function(s);
2. Mask, face covering, or face shield requirements as they apply to the employee’s workplace and job function(s);
3. COVID-19 sanitation requirements as they apply to the employee’s workplace and job function(s);
4. COVID-19 signs and symptom reporting procedures that apply to the employee’s workplace;
5. COVID-19 infection notification process as required by this rule;
6. Medical removal as required by this rule;
7. The characteristics and methods of transmission of the SARS-CoV-2 virus; Note: Oregon OSHA will provide training materials that can be used to complete this portion of the training.
8. The symptoms of the COVID-19 disease; Note: Oregon OSHA will provide training materials that can be used to complete this portion of the training.
9. The ability of pre-symptomatic and asymptomatic COVID-19 persons to transmit the SARS-CoV-2 virus; and Note: Oregon OSHA will provide training materials that can be used to complete this portion of the training.
10. Safe and healthy work practices and control measures, including but not limited to, physical distancing, sanitation and disinfection practices.

OSHA will make training materials available.

By January 6, 2021 – Ventilation Requirements. The employer must optimize the amount of outside air circulated through its existing heating, ventilation, and air conditioning (HVAC) system(s), to the extent the system can do so when operating as designed, whenever there are employees in the workplace and the outdoor air quality index remains at either “good” or “moderate” levels. This does not require installation of new ventilation equipment. For example:

1. Ensure all air filters are maintained and replaced as necessary to ensure the proper function of the ventilation system; and
2. Ensure all intake ports that provide outside air to the HVAC system are cleaned, maintained, and cleared of any debris that may affect the function and performance of the ventilation system.

Cascade will continue to monitor this and we will keep you updated should any additional guidance be released. Please don’t hesitate to reach out if you have any questions!