Oregon Administrative Rules 437 Division 1, General Administration
Administrative Order 4-2023, Adopted December 21, 2023, and effective January 1, 2024.
This rulemaking is to keep Oregon OSHA in harmony with recent changes to federal OSHA standards. On July 21st, 2023, federal OSHA adopted amendments to their injury and illness recordkeeping regulations, announced in the Federal Register (Vol. 88, No. 139). Due to the unique nature of the national recordkeeping program, states with OSHA state plans must promulgate recordkeeping and recording requirements that are substantially identical to 29 CFR part 1904.
In alignment with federal OSHA rule changes, this rulemaking adopts two new requirements in Oregon OSHA's equivalent rule OAR 437-001-0700 Recording Workplace Injuries and Illnesses:
• All employers with 100 or more employees in high-hazard industries (a subset of those who are already required to submit their OSHA Form 300A data) must electronically submit their OSHA Form 300 and DCBS Form 801 for case-specific data. Added Table 8 defines high-hazard industries in Oregon OSHA's rule.
• Employers must include their legal company name in their electronic submission of injury and illness data, along with the existing requirement of providing their Employer Identification Number (EIN).
The rulemaking also makes a number of minor corrections and updates outlining.
Administrative Order 3-2023, adopted on November 22, 2023 and effective January 1, 2024: Oregon OSHA amended 15 rules and adopted two new rules in Division 1, General Administrative Rules, related to Penalties and Work Refusal to align with the changes made to Oregon Safe Employment Act by Senate Bill 592 and changes to ORS 654.062 by Senate Bill 907 in the 2023 Oregon legislative session.
Senate Bill 592 required Oregon OSHA to conduct a comprehensive inspection of an employer when a place of employment is deemed necessary by the department based upon the prior violation history regarding any state occupational safety or health law, regulation, standard, rule or order; an inspection of an accident reveals that a violation caused or contributed to a work-related fatality; whenever three or more willful violations have occurred at a place of employment within a one-year period; or, whenever three or more repeat violations have occurred at a place of employment within a one-year period.
Senate Bill 592 also required Oregon OSHA to increase civil penalties for violations, establishes standards for future civil penalties, and creates a new “Caused or Contributed to a Work-Related Fatality" violation type. To meet these new requirements, Oregon OSHA amended civil penalties rules.
In addition, the legislation required Oregon OSHA to adjust its civil penalties annually based on changes in the Consumer Price Index for All Urban Consumers, West Region (All items) referenced here as (West Region CPI-U). In response, the agency adopted OAR 437-001-0142 that creates a bulletin process to make the mandatory annual adjustments – rather than annual rulemaking.
Senate Bill 592 also affects Oregon OSHA's employer penalty adjustments for certain civil penalties. Oregon OSHA moved the penalty adjustment content currently in OAR 437-001-0145 to a new rule and adopted OAR 437-001-0150 Civil Penalty Adjustments to align with the revised terms of the statute.
Lastly, Senate Bill 907 required Oregon OSHA to conduct rulemaking regarding an employee's right to refuse certain work tasks; federal OSHA already outlines these expectations. Oregon OSHA amended OAR 437-001-0295 Discrimination Complaint to align with federal OSHA.
Administrative Order 13-2021, adopted November 1, 2021 and effective December 1, 2021: This rulemaking aligns Oregon OSHA with the most recent federal OSHA penalties. Effective in January of 2021, the federal maximum penalty for a violation that is not classified as willful or repeat was increased to $13,653 and the maximum penalty for willful or repeated violations was increased to $136,532. In addition, this rulemaking includes several other clarifications and technical adjustments to the Oregon OSHA penalty rules.
On request from the Partnership Advisory Committee, Oregon OSHA assembled a Fiscal Impact Advisory Committee (FIAC). The FIAC recommended changes to the statement, and the Committee approved a revised fiscal impact statement in February 2020.
Oregon OSHA originally proposed the rule change February 26, 2020. Due to COVID-19 pandemic restrictions, the agency canceled in-person hearings and extended the comment period. The rule change was re-proposed April 24, 2020, and again, due to the extension of COVID-19 pandemic restrictions, Oregon OSHA canceled in-person public hearings and extended the comment period. The rule was re-proposed July 31, 2020, and held four virtual hearings in September and October 2020. Overall, Oregon OSHA received comment from February 26, 2020 through October 30, 2020 on the proposed rule amendments.
The agency adopted amendments to the following rules: OAR 437-001-0060 Advance Notice; OAR 437-001-0096 Red Warning Notice; OAR 437-001-0135 Evaluation of Probability to Establish Penalties; OAR 437-001-0145 Penalty for Other than Serious or Serious Violation; OAR 437-001-0155 Determination of Penalty – Failure to Correct; OAR 437-001-0160 Penalty Criteria – Repeat Violation; OAR 437-001-0165 Determination of Penalty – Repeat Violation; OAR 437-001-0170 Determination of Penalty – Failure to Report an Occupational Fatality, Catastrophe, or Accident; OAR 437-001-0171 Determination of Penalty – Failure to Register a Farm Labor Camp/Facility; OAR 437-001-0175 Determination of Penalty – Willful or Egregious Violation; OAR 437-001-0180 Determination of Penalty – Relating to Red Warning Notice; OAR 437-001-0225 Penalty for Falsification; and, 437-001-0740 Falsification or Failure to Keep and Post Records or Make Reports.
Administrative Order 5-2021, adopted and effective June 30, 2021: On June 4, 2021, Governor Kate Brown announced the removal of capacity limits on businesses and elimination of all mask requirements once the State reaches 70 percent of adults vaccinated against COVID-19 with at least one dose. On June 25, 2021, she further announced that Oregon would be making the change no later than June 30, 2021. Consistent with that decision, and to give the rule changes immediate effect, Oregon OSHA is amending OAR 437-001-0744 Rule Addressing COVID-19 Workplace Risks.
Major changes include the removal of physical distancing (section (3)(a)) and mask, face covering, or face shield (section (3)(b)) requirements for most employers. The rule retains the provision that an employee who chooses to wear a mask, face shield, or face covering, even when it is not required, must be allowed to do so. Notable exceptions to these changes include healthcare as well as transit.
Oregon OSHA has revised Appendix A accordingly. Mask and distancing guidance for Veterinary Care (A-10) is removed, leaving only the personal protective equipment provisions. Specific guidance for Transit Agencies (A-5) and Emergency Medical Services (A-11) remains in place, with some modifications. The agency has removed the specific requirements related to Restaurants, Bars, Brewpubs, and Public Tasting Rooms at Breweries, Wineries, and Distilleries (A-1); Retail Stores (A-2); Personal Services Providers (A-3); Construction Operations (A-4); Professional, Division 1, Pac-12, West Coast Conference and Big Sky Conference Sports (A-6); Employers Operating Fitness-Related Organizations (A-7); K-12 Educational Institutions (A-8); Employers Operating Child Care and Early Education Programs (A-9); Law Enforcement Activities (A-12); and, Jails, Prisons, and Other Custodial Institutions (A-13).
In addition, posting requirements (section (3)(d)) have been updated from COVID-19 content to instead remind employers of the importance of posting the “It's the Law" poster already required by OAR 437-001-0275 (2)(a).
As stated in public communications and in the rule itself, it is Oregon OSHA's intent to repeal the entire rule once it is no longer necessary to address the COVID-19 pandemic in Oregon workplaces. Discussions continue with the Oregon OSHA Partnership Committee, the Oregon Health Authority, the two Infectious Disease Rulemaking Advisory Committees, and other stakeholders to determine when additional parts of the rule can be appropriately repealed.
Administrative Order 2-2021, Adopted and effective May 4, 2021: This rule protects workers throughout the state from COVID-19 in the context of the current public health emergency, which has persisted into 2021. Oregon OSHA adopted a temporary rule on November 6, 2020 that is set to expire on May 4, 2021. The temporary rule included significant public discussion that was used to refine the rule through multiple drafts. In addition, two Rulemaking Advisory Committees, one for the general workplace and one for exceptional risk workplaces, including healthcare, engaged in the rule development. As the temporary rule is set to expire, the public health emergency remains a significant concern in Oregon and it is necessary to extend many of the provisions from the temporary rule to protect against illness and prevent the spread of COVID-19. In replacing the temporary rule with a permanent rule, some provisions were changed as more information became available about the transmission of the virus. If Oregon OSHA did not pursue permanent rulemaking for this continuing pandemic, workers would be less than fully protected and subject to the uncertainties of public health guidance rather than the relative clarity of a rule designed specifically to address Oregon workplaces. 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.
Four public hearings were held during February and March 2021 where Oregon OSHA received oral testimony on the proposed rules. In addition, the agency received more than 5,000 written comments on the proposed rule in the comment period from February 1 through April 2, 2021.
Oregon OSHA considered all comments received. Oregon OSHA, based on comments received, adjusted the proposed OAR 437-001-0744, Rules Addressing the COVID-19 Public Health Emergency in All Oregon Workplaces. Overall, Oregon OSHA simplified the rule and removed six sections from the Appendix, including specific guidance on Outdoor and Indoor Markets; Indoor and Outdoor Entertainment Facilities; Outdoor Recreation Organizations; Collegiate, Semi Professional and Minor League Sports; Employers Operating Licensed Swimming Pools, Licensed Spa Pools, and Sports Courts; and Institutions of Higher Education. Other notable changes to the final rule, as adopted, include modifications to the timeframe for repeal, K-12 educational institution appendix, vaccination, transportation, sanitation, clarification of requirements, and exposure records.
The final rule, as adopted, has a delayed effective date of June 3, 2021 for ventilation, transportation, employee notification, and the PPE supply and crisis management plan requirements. There is a delayed effective date of May 17, 2021 related to respiratory protection for direct patient care.
Administrative Order 3-2019, filed and effective October 29, 2019: Oregon OSHA is adopting changes to our administrative (recordkeeping), general industry, and construction standards, and updating references in the maritime activity standards in response to federal OSHA's adoption of final rules published in the May 14, 2019 Federal Register. This is Phase IV of federal OSHA's-Standards Improvement Project (SIP-IV), the fourth in a series of rulemakings to improve and streamline workplace safety and health standards. Oregon's response removes or revises rules or requirements within our corresponding rules that are outdated, duplicative, or inconsistent. This rulemaking is anticipated to reduce regulatory burden and compliance costs while maintaining or enhancing worker safety and health as well as worker privacy protections.
In Division 1, language was added emphasizing work-relatedness when determining occupational hearing loss.
Administrative Order 2-2019, Adopted and effective June 24, 2019: This rulemaking is to keep Oregon OSHA in harmony with recent changes to federal OSHA standards.
On January 25th 2019, federal OSHA adopted amendments to the rules titled “to improve tracking of workplace injuries and illnesses for employers" which OSHA originally adopted on May 12th, 2016. Due to the unique nature of the national recordkeeping program, state plan states must promulgate recordkeeping and recording requirements that are substantially identical to 29 CFR part 1904.
To protect worker privacy, Oregon OSHA will follow federal OSHA rulemaking and rescind the requirement for establishments with 250 or more employees to electronically submit information from recordkeeping forms 300 and 801. These establishments will continue to be required to maintain those records on site and Oregon OSHA will continue to obtain them as needed through inspections and enforcement actions. Employers will still be required to submit information electronically from their form 300A. These changes do not affect the targeted employers with 20 or more employees in an establishment. Those employers must continue to submit their 300A summary data.
In addition, Oregon OSHA is amending the recordkeeping regulation to require covered employers to submit their Employer Identification Number (EIN) electronically along with their injury and illness data submission. Nothing in the final rule revokes an employer's duty to maintain forms 300, 300A, and 801 for Oregon OSHA inspection.
Two public hearings were held in May, in Portland and Salem, and no oral comments were received. Oregon OSHA also received no written comments on this rulemaking, so the Division will be adopting the rules as proposed.
Administrative Order 5-2018, Adopted November 29, 2018 and effective December 17, 2018: Oregon OSHA made minor changes to its Division 1 rules. These are technical corrections to rectify inaccuracies and errors discovered through a comprehensive review of Division 1. These changes will correct several types of issues. Some are discrepancies between the Oregon OSHA codebooks and the Secretary of State administrative order filings that have grown through the years and now represent a relatively significant amount of dissonance between the organization's records. Many of the edits stem from rule reference errors, and other typos. Some are temporal in nature and simply update website and physical addresses, official positions holding delegated authority, and agency names that have changed through the years. This rulemaking will correct an omission of the rest of the rule regarding electronic record keeping, Oregon Administrative Rule (OAR) 437-001-0700(24)(f)-(g) and the accompanying tables and appendices. These sections were inadvertently left out of the last administrative order filing with the Secretary of State. Oregon OSHA will update OAR 437-001-0060 to remove specific dollar amounts for citations in ORS 654.086, as this statute was amended by the legislature to remove dollar amounts. Oregon OSHA will also amend OAR 437-001-0096 to update the monetary penalty for a red tag removal, as this was not completed during the last penalties rulemaking, but was intended to be changed.
One hearing was held in November 2018. There were no comments made at that hearing, and no written comments were submitted for this rulemaking.
Administrative Order 8-2017, adopted December 22, 2017 and effective January 1, 2018: In November of 2015 Congress passed legislation requiring federal OSHA to increase maximum and minimum penalties for alleged violations by up to 78%. Federal OSHA had not raised these penalties since 1990, reducing the effectiveness of penalties as a deterrent for non compliance. In addition the rule will provide a more level “playing field" for employers that strive for compliance with employers who are not following the law. Under federal law OSHA state plans must include effective sanctions for violations. Oregon must adopt similar standards as federal OSHA to maintain state plan authority.
Oregon historically has a high percentage of smaller employers. An additional base penalty reduction for employers with 10 or fewer employees will help maintain a balance between providing an effective deterrent through penalties and promoting a positive business climate with penalties that are not over burdensome for small businesses.
The proposed rule would increase the maximum penalty for a serious violation from $7,000 to $12,500. It would increase the maximum penalty for willful or repeated violations from $70,000 to $126,749. The base penalties set for serious alleged violations would increase similarly. Alleged violations at the lowest level of the penalty structure would not increase. Oregon's smallest employers (10 or fewer) would see an additional 15% reduction from the base penalty for size, changing the reduction from 60% to 75%.
One public hearing was held during November of 2017. Oregon OSHA received oral testimony at this hearing in addition to a written comment. Oregon OSHA considered all comments received, and will publish an explanation of rulemaking on its website.
Administrative Order 5-2017, adopted August 1, 2017 and effective January 1, 2018: The Oregon School Employees Association (OSEA) has led a campaign to reduce the amount of preventable injuries sustained by its members that were a result of violent behavior from students. In January 2017, OSEA petitioned Oregon OSHA to initiate rulemaking to remove NAICS 6111 (Elementary and Secondary Schools), 6116 (Other Schools of Instruction), and 6117 (Educational Support Services) from the exempt status of Table 1 in OAR 437-001-0700 Recording Workplace Injuries and Illnesses. Typically industries on the list that are exempted from recordkeeping are considered low hazard industries. In considering the petition to Oregon OSHA made by OSEA, it was discovered that industries covered by this rule have injury and illness rates that are significantly higher than would be expected in a low hazard industry. To illustrate: The DART rate (days away, restricted or transferred) for elementary and secondary schools from 2011 through 2015 are slightly higher than that of nonresidential construction. Recording injuries under the rule will enable the employer to identify causes and trends of injuries and create corrective actions to eliminate recurrence.
Two public hearings were held during May of 2017. Oregon OSHA received oral testimony at both of those hearings in addition to written comments. Oregon OSHA considered all comments received. Oregon OSHA has published a Summary of Comments and Agency Decisions, titled 'Explanation of Rulemaking, Final Action' regarding this rule on its website.
Administrative Order 6-1994, filed 9/30/94, effective 9/30/94: OAR 437, Division 40, General Provisions and Division 136, General Occupational Health Regulations, (OAR 437-136-010(1) and (2)), were redesignated as part of Division 1. Division 40 and 136 were then repealed.
Amended by OR-OSHA Administrative Order 7-1995, filed 7/5/95, effective 7/5/95.
Amended by OR-OSHA Administrative Order 9-1995, filed 11/29/95, effective 11/29/95.
Amended by OR-OSHA Administrative Order 10-1995, filed 11/29/95, effective 11/29/95.
Amended by OR-OSHA Administrative Order 2-1996, filed 6/13/96, effective 6/13/96.
Amended by OR-OSHA Administrative Order 1-1997, filed 1/31/97, effective 2/1/97.
Amended by OR-OSHA Administrative Order 10-1997, filed 12/31/97, effective 12/31/97.
Amended by OR-OSHA Administrative Order 5-1998, filed 10/15/98, effective 10/15/98.
Amended by OR-OSHA Administrative Order 7-1999, filed 7/15/99, effective 7/15/99.
Amended by OR-OSHA Administrative Order 11-1999, filed 10/20/99, effective 10/20/99 (temp).
Amended by OR-OSHA Administrative Order 4-2000, filed 4/14/00, effective 4/15/00.
Amended by OR-OSHA Administrative Order 11-2000, filed 12/12/00, effective 12/12/00.
Amended by OR-OSHA Administrative Order 8-2001, filed 7/13/01, effective 7/13/01.
Amended by OR-OSHA Administrative Order 11-2001, filed 9/14/01, effective 1/1/02.
Amended by OR-OSHA Administrative Order 2-2002, filed 3/12/02, effective 3/12/02.
Amended by OR-OSHA Administrative Order 7-2002, filed 11/15/02. effective 11/15/02.
Amended by OR-OSHA Administrative Order 6-2003, filed 11/26/03, effective 11/26/03.
Amended by OR-OSHA Administrative Order 6-2004, filed 12/30/04, effective 12/30/04.
Amended by OR-OSHA Administrative Order 1-2006, filed 2/14/06, effective 2/14/06.
Amended by OR-OSHA Administrative Order 7-2006, filed 9/6/06, effective 9/6/06.
Amended by OR-OSHA Administrative Order 8-2006, filed 9/15/06, effective 9/15/06.
Amended by OR-OSHA Administrative Order 5-2007, filed 9/5/07, effective 9/5/07 (temp).
Amended by OR-OSHA Administrative Order 8-2007, filed 12/3/07, effective 12/3/07.
Amended by OR-OSHA Administrative Order 10-2007, filed 12/3/07, effective 1/1/08.
Amended by OR-OSHA Administrative Order 11-2007, filed 12/21/07, effective 1/1/08.
Amended by OR-OSHA Administrative Order 1-2008, filed 2/22/08, effective 3/1/08 (perm).
Amended by OR-OSHA Administrative Order 8-2008, filed 7/14/08, effective 7/14/08.
Amended by OR-OSHA Administrative Order 9-2008, filed 9/19/08, effective 1/1/09.
Amended by OR-OSHA Administrative Order 2-2009, filed 1/27/09, effective 2/3/09.
Amended by OR-OSHA Administrative Order 10-2009, filed 10/5/09, effective 10/5/09.
Amended by OR-OSHA Administrative Order 2-2011, filed 9/29/11, effective 10/1/11.
Amended by OR-OSHA Administrative Order 2-2012, filed 5/11/12, effective 7/1/12.
Amended by OR-OSHA Administrative Order 2-2015, filed 3/18/15, effective 1/1/16.
Amended by OR-OSHA Administrative Order 6-2016, filed 11/10/16, effective 5/1/17.
Administrative Order 3-1989, filed 12/1/89, effective 12/1/89: On October 1, 1989, the Accident Prevention Division of DIF was renamed the Oregon Occupational Safety and Health Division (OR-OSHA).
Amended by OR-OSHA Administrative Order 10-1990 (temp), filed 5/31/90, effective 5/31/90.
Amended by OR-OSHA Administrative Order 24-1990 (perm), filed 10/10/90, effective 10/10/90.
Amended by OR-OSHA Administrative Order 1-1991 (temp), filed 1/28/91, effective 1/28/91.
Amended by OR-OSHA Administrative Order 3-1991, filed 2/25/91, effective 2/25/91.
Amended by OR-OSHA Administrative Order 5-1991 (perm), filed 3/18/91, effective 3/18/91.
Amended by OR-OSHA Administrative Order 8-1991, filed 4/25/91, effective 5/1/91.
Amended by OR-OSHA Administrative Order 9-1991, filed 4/25/91, effective 4/25/91.
Amended by OR-OSHA Administrative Order 10-1991, filed 4/25/91, effective 4/25/91.
Amended by OR-OSHA Administrative Order 7-1992, filed 7/31/91, effective 10/1/92.
Administrative Order 7-1989 (temp), filed 5/1/89, effective 5/1/89: In May of 1989, the title of OAR 437, Division 1, was redesignated from “Rules for the Administration of the Oregon Safe Employment Act" to “General Administrative Rules."
Amended by APD Administrative Order 10-1989 (perm), filed 7/7/89, effective 7/7/89.
Administrative Order 21-1988, filed 12/27/88, effective 12/27/88: OAR 437, Division 10, Insurer/Self-Insured Employer Consultative Services, was redesignated as part of OAR 437, Division 1 (OAR 437-01-1005 through 1070).
Administrative Order 7-1988, filed 6/17/88. Its effective date remains 7/14/74: OAR 436, Division 46, Rules for the Administration of Oregon Safe Employment Act, was redesignated as OAR 437, Division 1.
Administrative Order 6-1987, filed 12/23/87, effective 1/1/88: The 1987 Oregon Legislature established the Department of Insurance and Finance (DIF) effective July 1, 1987. The Accident Prevention Division (APD) became a division of DIF. Other divisions of WCD became the Workers' Compensation Division of DIF.
Amended by APD Administrative Order 5-1988, filed 5/16/88, effective 5/16/88.
Administrative Order 19-1974, filed 6/5/74, effective 7/1/74: “Rules for the Administration of the Oregon Safe Employment Act" were first adopted as OAR 436, Division 46, by the Workers' Compensation Board (later the Workers' Compensation Department).
Amended by WCB Administrative Order 33-1974, filed 9/5/74, effective 9/26/74.
Amended by WCB Administrative Order Safety 8-1975, filed 8/5/75, effective 9/1/75.
Amended by WCD Administrative Order Safety 5-1978, filed 6/22/78, effective 8/15/78.
Amended by WCD Administrative Order Safety 7-1979, filed 8/20/79, effective 9/1/79.
Amended by WCD Administrative Order Safety 4-1981, filed 5/22/81, effective 6/1/81.
Amended by WCD Administrative Order Safety 6-1982, filed 6/28/82, effective 8/1/82.
Amended by WCD Administrative Order Safety 12-1982, filed 8/13/82, effective 8/13/82.
Amended by WCD Administrative Order Safety 3-1983, filed 1/31/83, effective 2/1/83.
Amended by WCD Administrative Order Safety 9-1983 (temp), filed 11/15/83, effective 11/15/83.
Amended by WCD Administrative Order Safety 2-1984 (perm), filed 3/2/84, effective 3/15/84.
Amended by WCD Administrative Order Safety 12-1984, filed 9/20/84, effective 11/1/84.
Amended by WCD Administrative Order Safety 9-1986, filed 10/7/86, effective 12/1/86.