Oregon OSHA is moving forward on an aggressive timeline to adopt a temporary rule to address infectious disease in the workplace, which could go into effect as early as September 1, despite opposition from business interests who view it as an ill-timed new mandate.
“Hundreds of employees have complained their employers are not following Gov. Brown’s March 23 order closing non-essential businesses and ordering other businesses to enforce social distancing and allow remote work to slow the spread of COVID-19. Some employees complain that their working conditions simply are not safe due to their facilities, management decisions or a lack of precautions against the coronavirus,” the Portland Tribune has reported.
Part of the problem is the absence of applicable rules and definitions for infectious diseases. “The COVID-19 emergency has highlighted the risks that any infectious disease, particularly one that is airborne, can create for a wide variety of workplaces,” the state agency says in its issue paper. “As a result of both the immediate and long-term risks highlighted by the current public and occupational health crisis, Oregon OSHA is responding to the request that the state adopt an enforceable workplace health rule on an emergency basis this summer.”
“Fear over such potential costs should not prevent a discussion, nor should limited costs cause a proposed worker protection to be dismissed out of hand.”
Oregon lawmakers in their June special session didn’t require the state agency to move ahead with the rulemaking, but Oregon OSHA contends it has existing authority to adopt rules. “Oregon OSHA does not believe the legislature’s decision not to move forward with infectious disease legislation reflects a legislative expectation that Oregon OSHA would not use its existing authority,” the state agency says.
The issue paper lists and responds to several business concerns, including creation of a new workplace hazard and potential liability. “Oregon OSHA is already holding employers accountable for how they address such recognized hazards, relying both on OHA guidance and on various ‘general obligation’ requirements of existing Oregon OSHA rules. Further, Oregon OSHA believes the adoption of rules will provide greater certainty, which employers and their workers certainly have legitimate reason to expect.”
Business groups worry Oregon OSHA would give itself “unchecked authority” to mandate new workplace rules, which ultimately would become permanent. “This appears to be a concern about legislative proposals. Oregon OSHA’s rulemaking does not (and cannot) give Oregon OSHA any authority it does not already have. Even in relation to the legislative proposals, such a concern appears to be misplaced, because the legislation would not have expanded the authority already provided by the Oregon Safe Employment Act.”
The cost of compliance also has been raised by concerned business groups, noting many businesses are already struggling financially to survive. Oregon OSHA concedes additional costs are a consideration, but adds, “But fear over such potential costs should not prevent a discussion, nor should limited costs cause a proposed worker protection to be dismissed out of hand.”
The Oregon AFL-CIO supports stronger workplace safety rules, in part because of a “lack of enforcement” by the federal Occupational Safety and Health Administration, which it says has received thousands of complaints about failure to “take basic steps to mitigate infection risks”.
According to Oregon OSHA’s published timeline, it began recruiting technical advisory committee members in mid-July and conducting a series of industry workshops, as well as “targeted discussions within health care and closely related industries.”
A draft temporary rule is scheduled for circulation next week and public comments would be accepted through August 17. Publication of “near final” rule language is expected around August 24 with adoption slated for September 1. The rule would be effective immediately and remain in effect until February 28, 2021.
The agency will empanel advisory committees in August to begin work on a permanent rule, which could be circulated as early as October. The public comment period would begin in early November and extend through January 31, 2021. A decision on a permanent rule or modification of the temporary rule would come in February before the temporary rule expires.
