Employers are having to keep on their toes when it comes to protecting employees from COVID-19. Shifts in the outbreak continue to drive rapidly changing workplace health and safety rules in the Pacific Northwest, and this is leading to dramatically different requirements being imposed by federal and state authorities. No sooner had many employers considered relaxing mask mandates and return to work policies according to federal Occupational Safety and Health Administration (OSHA) guidelines, when the later summer rise in COVID-19 cases led OSHA to publish new guidance on August 13, 2021, reinstituting some restrictions. At the same time, local and state health authorities in the Pacific Northwest have imposed new safety and health requirements, including mask mandates. To help employers with the dizzying array of changing requirements, we summarize some of those key requirements below.
The latest OSHA guidance entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace states that unvaccinated or at-risk employees should wear face coverings indoors, maintain social distancing, participate in training, practice good hygiene, and get tested regularly in places of substantial or high community transmission. However, OSHA’s guidance still indicates that unvaccinated or at-risk employees working outdoors may choose to work without wearing face coverings. OSHA’s guidance for fully vaccinated employees mirrors that published by the Center for Disease Control and Prevention (CDC), with both federal agencies recommending that vaccinated employees:
OSHA’s guidance further encourages employers to work with employees to implement multi-layered interventions to protect unvaccinated or at-risk workers and mitigate the spread of COVID-19. OSHA recommends that employers consider the following measures to mitigate and prevent COVID-19 from spreading in the workplace:
OSHA’s guidance further suggests that employers should assess whether their workplace is considered “higher-risk” and should implement additional protections, based on the following factors:
For higher-risk workplaces, OSHA’s guidance suggests that employers take additional precautions, including:
OSHA’s guidance is directed to all industries that are not specifically addressed otherwise (such as the healthcare industry). Importantly, OSHA’s guidance states that it “is not a standard or regulation, and it creates no new legal obligations” — except where mandatory OSHA standards exist. This should give some comfort to those employers who are not currently complying with OSHA’s guidance, but it also does not provide immunity to employers. Indeed, employers remain obligated under the general duty clause of the federal Occupational Safety and Health Act of 1970 to provide employees with a “place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.”
Certain states, such as Oregon and Washington, administer their own OSHA plans. These state plans typically replace or supplement federal OSHA standards, and often impose rules that exceed federal OSHA guidelines, impose additional health and safety requirements, and may even impose penalties and provide enforcement obligations.
Oregon’s Updated OSHA Guidelines: The state of Oregon administers its own state plan that is enforced by “Oregon OSHA,” an agency located in the state’s Department of Consumer and Business Services. Similar to federal OSHA’s guidelines, Oregon OSHA amended its administrative rules on June 30, rolling back some of the existing COVID-19 safety protocols. This was revised again on August 13 and 27, 2021, to account for the rise in COVID-19 cases. Oregon’s latest rules (1, 2, and 3) impose the following requirements on employers with Oregon operations:
Washington L&I’s Updated Guidelines: Washington also administers its own state plan. It is enforced by the Department of Labor and Industries (L&I), Division of Occupational Safety and Health (DOSH). The L&I Requirements and Guidance for Preventing COVID-19, published by DOSH on August 23, 2021, imposes different requirements on employers in public spaces and non-public spaces. For employers in public spaces, they must do the following to maintain a safe, COVID-free work environment:
For employers in non-public spaces, they must do the following:
Finally, L&I’s recent guidance suggests (but does not require):
In addition, the Washington Legislature passed the Health Emergency Labor Standards Act (HELSA), which became effective when it was signed by Governor Inslee on May 11. In addition to imposing reporting requirements for large employers with COVID outbreaks, HELSA modified workers’ compensation requirements for frontline workers, and codified Governor Inslee’s high-risk worker proclamation imposing accommodation requirements on employers. L&I has published helpful Questions and Answers About Protecting High-Risk Employees From Discrimination During Public Health Emergencies.
Employers with operations in the Pacific Northwest must remain vigilant. In light of current federal and state health and safety requirements, employers should:
Determining how to best approach your workforce and COVID-19 concerns during these uncertain and rapidly evolving times can be challenging. Lane Powell’s team of Labor and Employment attorneys are here to help you develop and implement the strategy that supports your business and employees. For more information, contact Katheryn Bradley or Riley Moyer.
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