Oregon OSHA’s Adoption of Rules Addressing the COVID-19 Workplace Requirements for Employer-Provided Labor Housing

Rulemaking Summary

This rule is needed to protect vulnerable workers in employer-provided labor housing from the health risks created by the current COVID-19 public health emergency, especially those who spend both their working and their off-work hours at the employer’s location. Oregon OSHA's temporary rule: COVID-19 Public Health Emergency in Labor Housing and Agricultural Employment (OAR 437-001-0749) expired on October 24, 2020. On October 23, 2020, Governor Brown issued an Executive Order 20-58 extending employer-provided housing requirements (Section 2) of OAR 437-001-0749. As the Governor’s Executive Order is set to expire, the public health emergency remains a substantial concern in Oregon. As a result, it is necessary to extend the provisions from the Executive Order with a permanent rule. The exposures created in the labor housing environment, particularly in working situations requiring large numbers of workers, make these rules necessary to reduce risk to individual workers. Many workers face unique challenges in situations where housing is provided as part of the employment relationship. In consultation with stakeholders, Oregon OSHA modified some requirements from the temporary rule in the proposed rule given more information concerning COVID-19 transmission. Oregon OSHA indicated in the proposed rule that it will repeal this rule once it is no longer necessary to address the COVID-19 pandemic in employer-provided labor housing.

Three public hearings were held in March 2021 where Oregon OSHA received oral testimony on the proposed rule. The agency also received written comments on the rule from agricultural producers, employer representatives and farmworker advocacy organizations. Generally, feedback from advocacy organizations centered on ventilation, physical distancing, and sleeping density requirements. Most employer feedback focused on the definition of household, sleeping density, specifying an end date, and sanitation as well as questions about vaccination.

Oregon OSHA, based on the comments received, made adjustments to the proposed OAR 437-004-1115. The proposed rule had included a change to the definition of household that received considerable attention during the comment period. While the change to the definition of household was generally supported by both business and labor, business objected to the requirement that the household be “preexisting” and some employers objected to the loss of the option to house related individuals who were not part of the same household. The final rule, as adopted, exempts both related individuals and those from the same preexisting household from certain density and distancing requirements.

Oregon OSHA received considerable comment about the lack of a repeal date. Many comments questioned the indefinite nature of the rule and the lack of a specific sunset date or automatic repeal trigger. Several suggested the rule should be repealed when the declared emergency ends. The final rule provides more detail regarding the criteria that will be used for repeal and commits to meetings with the Oregon OSHA Partnership Committee, the Oregon Health Authority, and other stakeholders, beginning in July and at least every two months thereafter, to discuss whether all or part of the rule can and should be repealed.

The proposed rule provided two options for sleeping areas, one that allows somewhat greater density when air purifiers are used and one that requires lower density when air purifiers are not used.  If operators use air purifiers as specified by the rule, they would be able to measure the six foot separation of beds using the center point of a single-occupancy bed rather than the frame as required in the temporary rule.  If they do not use air purifiers, they would need to ensure at least six foot separation between the bed frames and the sleeping rooms would need to provide at least 100 square feet (sf) per person (compared to the preexisting requirement of 50 sf per person). Given the use of barriers has been determined to not be as effective as once believed, the use of impermeable barriers in lieu of distancing was no longer permitted in the proposed rule.

Although worker advocates support the use of air purifiers, they generally opposed the relaxation of the requirements to encourage their use and would prefer that the rule require both air purifiers and the stricter density requirements. They strongly support the elimination of the barrier option. Employers that testified largely focused on the loss of the barrier as an option, they largely did not address the fact that the use of air purifiers would offer them somewhat greater density than was allowed in 2020. The final rule, as adopted, keeps the approach used in the proposal.

Consistent with the approach recommended by Occupational Safety and Health Administration of the United States Department of Labor (“federal OSHA”), Oregon OSHA is not encouraging employers to distinguish between workers based on vaccination status. No reference to vaccinations is included in the final rule.

In regards to sanitation, the Centers for Disease Control (CDC) also reduced their recommendations for sanitation of surfaces in recent weeks. The proposed rule had already reduced sanitation of common use areas from two to three times daily (in the previous temporary rule) to once daily, which is consistent with the recent CDC recommendations. The final rule, as adopted, reflects this change.

The text of the adopted rule is available on the Adopted Rules webpage.

Please visit our web site osha.oregon.gov  Click ‘Rules and laws’ in the Common resources column and view our adopted rules, or select other rule activity from this page.

This is Oregon OSHA Administrative Order 1-2021, Adopted and effective April 30, 2021.

Oregon OSHA contact: Gary Robertson, Salem Central Office @ 503-378-3272, or email at Gary.L.Robertson@oregon.gov

Updated Adopted Administrative Rules are now available on the Oregon OSHA website.