By Conn Maciel Carey’s COVID-19 Task Force

On June 26, 2020, Oregon OSHA announced that in consultation with the Oregon Health Authority (OHA)/Public Health and other technical advisors, as well as affected stakeholders, it had begun to develop a pair of temporary COVID-19 workplace rules — one for healthcare and closely-related industries, and another for general workplaces.  The target effective date for those temporary rules is September 1, 2020, with the rules to remain in effect through at least February 2021. In parallel, Oregon will also begin work on permanent rules addressing airborne infectious disease control through the state’s normal rulemaking process.

The technical advisory group meetings and external stakeholder meetings are already taking place and are expected to be completed over the next two weeks.

Even though the emergency temporary standards will not go through the typical, more formal rulemaking process, there are still opportunities for employers to influence:

• the scope of the rules;
• the substantive requirements of the rules; and/or
• how their workplaces will be characterized (i.e., as healthcare or general industry).

Participation in the stakeholder meetings and the submission of comments could make

a significant impact on the nature of the burdens placed on Oregon employers through the remainder of the pandemic.

Conn Maciel Carey’s COVID-19 Task Force has been working with employers throughout the crisis to influence COVID-19 related guidance and interpretations and on more formal rulemakings for emergency temporary standards in other states, like Virginia OSHA that was the first State OSH Plan leading the charge to develop emergency temporary COVID-19 infectious disease rules for employers.  We would be happy to assist any Oregon employers who want to provide input through this process.

Oregon OSHA has laid out the following step-by-step calendar for the rulemaking:

• Week of July 20: Circulate draft of temporary rule addressing COVID-19 emergency in health care and closely related industries. Allow 21 days for comment (not exactly formal public comment, but similar).
• Week of July 27: Circulate draft of temporary rule addressing COVID-19 emergency in the general workplace. Allow 21 days for comment (not exactly formal public comment, but similar).
• Week of August 10: Empanel “Airborne Infectious Disease in Health Care” Rulemaking Advisory Committee (Health Care RAC) to work with Oregon OSHA on permanent rule language addressing health care and closely related activities.
• August 17: Publication of near final language of both temporary rules, with a planned adoption and effective date of September 1, 2020.
• Week of August 17: Empanel “Airborne Infectious Disease in the General Workplace” Rulemaking Advisory Committee (Workplace RAC) to work with Oregon OSHA on permanent rule language addressing the general workplace.
• August 21: Discussion of temporary rule language and permanent rule process with Oregon OSHA Partnership Committee (temporary rule language to be finalized, but not yet adopted, as quickly as possible following the meeting and discussion).
• September 1: Adoption of both temporary rules with immediate effect (through February 28, 2021).
• Month of September: Both Health Care RAC and Workplace RAC meet as necessary to provide feedback and advice regarding permanent rules..
• Week of October 5: Produce pre-proposal draft of permanent Airborne Infectious Disease in Health Care Rule for stakeholder discussion (in meetings with the Health Care RAC and in response to broader circulation).
• Week of October 12: Produce pre-proposal draft of permanent Airborne Infectious Disease in the General Workplace Rule for stakeholder discussion (in meetings with the Workplace RAC and in response to broader circulation).
• Week of November 2: File both permanent rules as formal proposals, with comment period (including public hearings) extending through January 31, 2021.
• January 31: Public comment period ends.
• Month of February: Public comments reviewed by Oregon OSHA and final decision documents developed.
• Week of February 22: Decision made whether to adopt, modify or withdraw one or both rules, with the effective date of any rule adopted to be March 1 (although any new requirements that had not been included in the temporary rules are expected to take effect at a later date (likely between 60 and 120 days later)).

We will continue to monitor Oregon OSHA’s rulemaking, as well as guidance on how its regulations apply to the Coronavirus pandemic, and we will provide additional updates on these evolving issues.

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In the meantime, for additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 Resource Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance, as well as COVID-19 recordkeeping and reporting flow charts.  Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.