In response to the COVID-19 pandemic, Oregon Occupational Safety and Health Administration (OSHA) adopted temporary emergency rules, which apply to employer-provided housing and labor-intensive farm operations. When OSHA first issued the temporary emergency rules, they were set to take effect May 11, 2020. In response to requests from agricultural employers and their representatives, OSHA agreed to delay enforcement of the rules (including the provisions that technically took effect May 11, 2020) until June 1, 2020. ‎

The temporary rules address three main areas: field sanitation, labor housing, and transportation. With respect to field sanitation and transportation, the rules only apply to labor-intensive agricultural operations (activities that normally fall under OAR 437, Division 4). Below is a brief summary of the rules. Please note, if these rules apply to your operation, we strongly encourage you to review the entire text of the rules with your attorney to ensure compliance.

Field sanitation

• Employers must appoint one or more social distancing officers and implement work practices to ensure at least six feet of separation during work activities, breaks, and meal periods.
  • If impossible to structure work activities to avoid such contact, contact within six feet must be minimized and the employer must implement appropriate additional sanitation and protective measures (including the use of cloth face coverings by the affected employees).
• Effective June 1, 2020, employers must increase toilet/handwashing facility availability ratios to one per 10 workers. Employers who can demonstrate that market availability prevents immediate compliance must provide as many toilet and handwashing facilities as possible until the ratio is achieved.
• In addition to the existing requirement that toilet and handwashing facilities be within a quarter mile of workers, toilets must be located at the entrance or exit to the field or in a completely harvested area, whichever is closer.
• Toilets and handwashing facilities must be sanitized at least three times daily.
• Field sanitation notice and training requirements are revised to include prevention of COVID-19.

Labor housing

• Additional guidance is provided on registration of temporary housing and the use of existing hotel or motel facilities.
  • Oregon OSHA has announced that it will provide interim approvals for new or modified housing based on a review of application materials, supplemented by photographs or other materials that OSHA requests during the review, without the on-site visit that OSHA normally requires. More information can be found on the Oregon OSHA website under the Agricultural Labor Housing section.
• Employers must appoint one or more social distancing officers and implement housing operations to ensure at least six feet of separation between unrelated individuals.
• Effective June 1, 2020, employers must provide additional toilets by reducing the ratio from one toilet for every 15 workers to one toilet for every 10 workers. Employers who can demonstrate that market availability prevents immediate compliance must provide as many toilet facilities as possible until the ratio is achieved.
• Use of bunk beds by unrelated individuals is prohibited.
• Square footage requirements do not change. However, the separation of beds by at least six feet or by an impermeable barrier is required.
• Common use toilets and handwashing facilities, and other high-contact common use items, must be sanitized at least two times daily. Employers must also provide appropriate cleaning materials to enable occupants to keep private living areas clean and sanitary.
• As required under existing Oregon Health Authority rules, COVID-19 cases must be reported immediately, day or night.
• In terms of the isolation of COVID-19 confirmed or suspected cases, employers must follow certain requirements, including ensuring that food and water is provided to those in isolation.

Transportation

• At least three feet of social distancing must be maintained during travel in employer-provided vehicles.
• The driver and passengers must wear facial coverings in employer-provided vehicles.
• High-contact areas in employer-provided vehicles must be sanitized before each trip or at least two times daily if in continuous use.
• Employers must provide training to employees about ensuring appropriate social distancing when in their personal vehicles.

Employers who need additional time to come into compliance (beyond the demonstrated inability to comply with certain provisions already acknowledged in the rule) will need to seek a temporary variance based on their particular circumstances. Please reach out to a Schwabe, Williamson & Wyatt attorney if you would like assistance requesting a variance.

The temporary rules will remain in effect until repealed, but not later than October 24, 2020.

Oregon OSHA has provided a Q&A document, which may answer questions you have on the temporary rules. OSHA required field sanitation notices can be found here. If you have additional compliance questions, please contact a Schwabe, Williamson & Wyatt attorney. Governmental ‎authorities are coming out with new recommendations, guidelines, and laws frequently, so it is ‎important that every employer continue to check for updated guidance from both the state and ‎federal governments. Schwabe has prepared a resource for affected employers in the natural resources industry, which can be ‎found here. Check back often, as this resource is being updated on a regular basis.‎

This article has been published in Capital Press.