Seyfarth Synopsis: This week, the State of Oregon issued a final COVID-19 worker protection standard, replacing its temporary rule adopted six months ago. The final rule, effective on May 4th with certain provisions phasing in over time, is slated to stay in effect until state officials declare the COVID-19 emergency over.

The Oregon Occupational Safety and Health Administration (Oregon OSHA) drafted the updated rule following the process required for non-emergency rules, including holding public hearings and receiving and addressing written comments. The new rule mirrors the state’s temporary standard with minor changes. Employers with ten or more employees must have a written infection control plan in place that meets the core requirements. But employers that already assessed the COVID-19 risks their workers face, developed an infection control plan, and conducted training to comply with the earlier measure do not need to repeat those efforts. In short, workplace precautions put in place under the temporary rule to prevent transmission of COVID-19 at work need to be maintained.

Despite considerable public comment, the final rule continues to ignore the significant impact that COVID-19 vaccinations play in reducing potential workplace COVID-19 risks. In fact, despite the overwhelming evidence that vaccines are extremely effective against death and serious illness requiring hospitalization, as well effective at reducing the risk of transmission of COVID-19, Oregon OSHA states that it is following Federal OSHA’s January 29, 2021 guidance that employers should not distinguish among workers who are vaccinated and those that are not. This plainly contradicts CDC guidance regarding the effectiveness of the vaccines and their impact on the need to quarantine vaccinated workers after a known COVID-19 exposure. (The CDC says such a worker need not quarantine unless they develop symptoms). Further, with Federal OSHA potentially on the verge of issuing its own ETS, Oregon OSHA chose to rely on months-old guidance, as opposed to CDC’s more recent recommendations. It is unclear how these contradictions will be resolved, but the reduction in workplace risks that result from increasing numbers of vaccinated workers is not in dispute.

The new rule creates mandates requiring respiratory protection for healthcare workers providing direct patient care, that take effect May 17, 2021. There are also new requirements, effective June 3, 2021, for creation of a crisis management plan, as well as requirements related to ventilation, employer-provided transportation, employee notification, and creation of a personal protective equipment supply management plan for healthcare employers.

See the Agency’s Summary of Key Issues Revision and Extension of Oregon COVID-19 Workplace Rules for more detailed discussion and the Agency’s explanation of the rules.