Since the pandemic began, the Occupational Safety and Health Administration (OSHA) has been one of the strong arms of the Governor’s COVID-19 enforcement team. They have written rules and levied hefty fines against businesses that do not follow the COVID-19 rules as a way to bring them into compliance.

• A Bend coffee shop was fined $26,700 -- 3x the minimum penalty -- for allowing indoor dining.
• A Florence restaurant was also fined $17,800 (2X the minimum penalty) based on social media posts, for allowing indoor dining.
• A Springfield restaurant was fined $8,900 for allowing indoor dining based on news stories and social media posts.

However, these fines are small compared to the ones levied against a multi-location athletic facility in Salem. The first fine was in November for $90,000 and the most recent one was assessed in January for an additional $126,749. The fines were for operating when the Governor’s orders were to be closed.

OSHA has been levying these penalties under a temporary rule issued in November of 2020. However, temporary rules cannot remain in effect longer than 180 days and they cannot be extended. The temporary rule expires on May 4, 2021. The only option the agency has is to issue the guidelines under a permanent rule. So, in January, OSHA issues the permanent rule for public input. The permanent rule is 126 pages long and is much more expansive than the rules currently in place. It is also unclear what the new fines will be for not following the existing rules being extended and the new ones being added.

For example, In Oregon Administrative Rule 437-001-0744 under COVID-19 vaccination for workers, it states:

(A) The employer must cooperate by making its employees and appropriate space available at no cost to the workers whenever a local public health agency or Oregon Health Authority indicate that COVID-19 vaccination within the workplace is necessary.

What triggers a local public health agency or Oregon Health Authority to deem that a COVID-19 vaccination at the workplace is necessary?

(C) Unless the local public health agency or Oregon Health Authority directs otherwise, employers need not require employees to accept the vaccination. If employees who are offered the vaccine decline to be vaccinated, the employer must document that declination.

Why would an employer be documenting an employee’s personal health choice? Is this a violation of the 1996 Federal Health Insurance Portability and Accountability (HIPAA)? Also, what about businesses that have employees that are under 18? Who signed the consent form to vaccinate or not to vaccinate?

Note: Oregon OSHA will provide model declination forms for use by employers in documenting such declination. It is the considered opinion of both the Oregon Health Authority and Oregon OSHA that all individuals should accept vaccination unless it is medically contra-indicated.

Contra-indicated is a specific situation in which a drug should not be used because it may be harmful to the person. What will be on the OSHA approved form? What if the employee refuses to provide the employer with information required on the form such as address, phone number, etc.? How will the employer know if the employee is medically contra-indicated; again, another possible HIPAA violation?

OSHA has stated that they do not intend these rules to be permanent in perpetuity and that the rules will end when the Governor’s state of emergency ends. The Permanent OSHA rules will take affect on or before May 4, 2021. The Oregon Health Authority Vaccine distribution chart has Phase 2 eligibility (all people who are 16 and older) being eligible May 1, 2021.

A D V E R T I S E M E N T

A D V E R T I S E M E N T

With Governor Brown already on her 6th Executive Order extension for the COVID-19 State of Emergency, which lasts until April 25th, a 7th extension would seem inevitable based on the OSHA rule timeline and vaccine rollout dates. A 7th extension of the Governor’s Emergency Declaration would last into the end of June.

The public comment period on the OSHA rules has ended. So, for now, all businesses and Oregonians can do is sit and wait to see what OSHA implements and how long the Governor will keep the rules in place by ongoing Executive Order.


--Terese Humboldt

Post Date: 2021-04-04 16:22:57

Last Update: 2021-04-04 16:33:49