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Revision and Extension of Oregon COVID-19 Workplace Rules Explanation of Rulemaking, Final Action Table of Contents Executive Summary

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Revision and Extension of Oregon COVID-19 Workplace Rules Explanation of Rulemaking, Final Action Table of Contents Executive Summary Department of Consumer & Business Services May 28, 2021 Revision and Extension of Oregon COVID-19 Workplace Rules Explanation of Rulemaking, Final Action Table of Contents Executive Summary .................................................................................................................................. 2 Section I: History of the Current Rulemaking ............................................................................................. 4 Section II: Description of the Rule as Adopted and Comparison of the Rule to the Previous Rule .............. 15 Section III: Application of Statutory Requirements .................................................................................. 18 Summary of Oregon OSHA’s Statutory Authority and Obligations under the OSEA ........................................................... 19 Summary of Administrative Procedures Act (APA) Requirements ...................................................................................... 24 The Question of the Rule’s Constitutionality ....................................................................................................................... 28 Section Summary ................................................................................................................................................................ 31 Section IV: Appropriate Consideration and Evaluation of Public Comments ............................................. 32 Evaluating Comments that Provide Little or No Analysis .................................................................................................... 32 Evaluating Comments that Misunderstand the Proposal’s Effects ..................................................................................... 32 Evaluating Comments that Appear to Misunderstand the Scientific Literature ................................................................. 34 Addressing other Comments by Individuals who Make Clear Errors .................................................................................. 39 Section Summary ................................................................................................................................................................ 40 Section V: Application of Science and Other Data in Rulemaking ............................................................. 41 Section VI: Analyzing COVID-19 Exposure Risks ....................................................................................... 43 The Reality of the Pandemic ............................................................................................................................................... 43 Comparison to Seasonal Flu or the Common Cold .............................................................................................................. 43 Discussion of Death and “Survival” Rates ........................................................................................................................... 45 Suggestions of Inaccurate Reporting of COVID-19 Fatalities .............................................................................................. 47 The Need to Address Asymptomatic, Presymptomatic, and Mildly Symptomatic Transmission ........................................ 49 Contrary Views of the Risks Presented by COVID-19 .......................................................................................................... 53 Suggestions that the Need for Exceptional Action Has Passed ........................................................................................... 54 Section VII: The Question of Timing and the Rule’s Repeal ...................................................................... 57 Section VIII: The Question of Facial Coverings ......................................................................................... 61 The Use of Face Coverings as Source Control ..................................................................................................................... 61 Use of Masks as Source Control Does not Violate the Respiratory Protection Standard .................................................... 62 Use of Masks Does not Create an Oxygen-Deficient Atmosphere ...................................................................................... 65 Do Facial Coverings Work? The Non-Existent “Stanford Study ........................................................................................... 67 Facial Coverings Work to Reduce the Spread of COVID-19 ................................................................................................. 68 Section IX: The Question of Sanitation .................................................................................................... 72 Section X: The Question of Ventilation ................................................................................................... 73 Section XI: The Question of Vaccines ...................................................................................................... 75 Section XII: The Question of Schools ....................................................................................................... 79 Section XIII: A Changing Approach to the Appendices ............................................................................. 82 Section XIV: Discussion of Other Suggested Changes to the Rule ............................................................. 86 Section XV: Discussion of Economic Impact and Mitigation ..................................................................... 95 Section XVI: Oregon OSHA Enforcement Activity in Relation to COVID-19 .............................................. 101 Section XVII: Evaluating the Rule and Assessing Its Effectiveness ........................................................... 104 Section XVIII: Conclusion – The Rule as Adopted Strikes an Appropriate Regulatory Balance .................. 105 Wood Michael | EXPLANATION OF RULEMAKING, COVID-19 WORKPLACE RULE PAGE 2 Executive Summary This document provides the rulemaking history, rationale and explanation for Oregon OSHA’s decision to adopt OAR 437-001-0744 Addressing COVID-19 Workplace Risks. Although Oregon OSHA did not have specific rules addressing COVID-19 at the outset of the pandemic, the various general obligations to ensure workplace safety and health did have a bearing, particularly in the context of the executive orders directing certain businesses and other workplaces to take specific actions to protect both the public and their workers. Oregon OSHA had begun to receive complaints raising issues related to COVID-19 in February, 2020, almost entirely focused on health care. The week that began with the “Stay Home, Stay Safe” order, the total number of complaints rose to unprecedented levels, with 1,392 complaints received, of which more than 95 percent were related to COVID-19. Although the complaint volume has varied in the weeks and months since then, it has remained well above any pre-pandemic level. Oregon OSHA had not seriously considered rulemaking in the earliest days of the COVID-19 pandemic, but on March 20, 2020, several farmworker advocates submitted a formal petition requesting immediate rulemaking to address COVID-19 in Field Sanitation and Agriculture Labor Housing. Oregon OSHA declined to take immediate action, but the petition was circulated for review and comment by affected stakeholders. After considering the totality of the record, Oregon OSHA responded on April 28, 2020, with the adoption of a temporary rule addressing both field sanitation and worker housing. In conversations with worker advocates who had been pursuing potential legislative solutions to workplace COVID-19 risks prior to the First Special Session of 2020 in June, Oregon OSHA advised them that the agency had sufficient authority to address COVID-19 workplace hazards through rulemaking and was prepared to do so on a temporary basis until the full rulemaking process could be completed. On June 26, 2020, Oregon OSHA announced it would begin both temporary and “permanent” rulemaking to address the risks of airborne infectious diseases in Oregon workplaces. Ultimately, after many meetings and the circulation of four drafts for varying levels of public and stakeholder comment, the temporary COVID-19 workplace rule was finalized and adopted on November 6, 2020. The press release announcing the temporary rule’s adoption ended with the statement that “Oregon OSHA continues to pursue permanent rulemaking that would provide a structure for responding to potential future disease outbreaks” and directing readers to the Oregon OSHA Infectious Disease Rulemaking page for more information. Based on the November 6 adoption date, it was now clear based on ORS 183 (Administrative Procedures Act) that the temporary rule could remain in place through May 4, 2021, and the agency began working in earnest with the two 25-member Rulemaking Advisory Committees (RACs) that had been empaneled to assist with the permanent rulemaking process (and who had ultimately been involved in reviewing the later drafts of the temporary rule as well). The two groups worked in parallel, with Oregon OSHA staff working with both committees, in an effort to develop a permanent rule that both would provide for ongoing COVID- 19 protections and could function on an ongoing basis to address infectious disease in the future. Following discussions about the scope of the rule and whether the timeframe could be met in both RACs the first week
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