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The Oregon Administrative Rules contain OARs filed through October 15, 2014
 
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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,
OREGON OCCUPATIONAL SAFETY AND HEALTH DIVISION

 

DIVISION 1

RULES FOR THE ADMINISTRATION OF THE OREGON SAFE EMPLOYMENT ACT

437-001-0001

Model Rules of Procedure

The Model Rules of Procedure, OAR 137-001-0005 through 137-001-0100, in effect on January 1, 2008, as promulgated by the Attorney General of the State of Oregon under the Administrative Procedures Act, are adopted as the rules of procedure for rulemaking actions of the Oregon Occupational Safety and Health Division.

[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedure is available from the agency.]

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: OSHA 3-1991, f. & cert. ef. 2-25-91; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 2-1994, f. & cert. ef. 5-19-94; OSHA 2-1996, f. & cert. ef. 6-13-96; OSHA 7-1999, f. & cert. ef. 7-15-99; OSHA 11-2000, f. & cert. ef. 12-12-00; OSHA 2-2002, f. & cert. ef. 3-12-02; OSHA 6-2004, f. & cert. ef. 12-30-04; OSHA 1-2006, f. & cert. ef. 2-14-06; OSHA 8-2008, f. & cert. ef. 7-14-08

437-001-0002

Notice to Interested Persons of Rulemaking

Except when adopting a temporary rule, in accordance with ORS 183.335(5), the Director will give prior notice of the proposed adoption, amendment or repeal of an administrative rule by:

(1) Publishing notice of the proposed action in the Secretary of State's Oregon Bulletin at least 21 days prior to the effective date of the action.

(2) Notifying interested persons and organizations on the Division's notification lists of proposed rulemaking actions under ORS 183.335. The same information is also posted on the OR-OSHA web site at www.orosha.org. The Division will send the notice to those on OR-OSHA's e-mail notification list, and mail paper copies to those on the hard-copy notification list. Both subscription methods are available on the web site listed above or call the Oregon OSHA Resource Center at 503-378-3272.

Stat. Auth.: ORS 654.025(2), 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: OSHA 9-1991, f. & cert. ef. 4-25-91; OSHA 6-1994, f. & cert. ef. 9-30-94; OSHA 7-1999, f. & cert. ef. 7-15-99; OSHA 7-2006, f. & cert. ef. 9-6-06

General Information

437-001-0005

Authority and Applicability of Rules

(1) These rules are promulgated under the Director’s authority contained in ORS 654.025(2) and 656.726(4).

(2) Adoption Procedures: These rules for the Administration of the Oregon Safe Employment Act (OAR 437, division 1) are adopted in accordance with ORS Chapter 183 and the Director’s Rules of Practice and Procedure Applicable to Rule Making Functions.

(3) History: Prior “Rules for the Administration of the Oregon Safe Employment Act” (OAR 436, division 46, rules 436-046-0005 through 436-046-0750) were first adopted by WCB Admin. Order 19-1974; filed 6-5-74; effective 7-1-74. Amendments were made by:

WCB Admin. Order 33-1974, f. 9-5-74, ef. 9-26-74.

WCB Admin. Order, Safety 8-1975, f. 8-5-75, ef. 9-1-75.

WCD Admin. Order, Safety 5-1978, f. 6-22-78, ef. 8-15-78.

WCD Admin. Order, Safety 7-1979, f. 8-20-79, ef. 9-1-79.

WCD Admin. Order, Safety 4-1981, f. 5-22-81, ef. 7-1-81.

WCD Admin. Order, Safety 6-1982, f. 6-28-82, ef. 8-1-82.

WCD Admin. Order, Safety 12-1982, f. 6-28-82, ef. 8-1-82.

WCD Admin. Order, Safety 3-1983, f. 1-31-83, ef. 2-1-83.

WCD Admin. Order, Safety 9-1983, f. 11-15-83, ef. 11-15-83.

WCD Admin. Order, Safety 2-1984, f. 3-2-84, ef. 3-15-84.

WCD Admin. Order, Safety 12-1984, f. 9-20-84, ef. 11-1-84.

WCD Admin. Order, Safety 9-1986, f. 10-7-86, ef. 12-1-86.

APD Admin. Order 6-1987, f. 12-23-87, ef. 1-1-88.

APD Admin. Order 5-1988, f. 5-16-88, ef. 5-16-88.

OAR 436, division 46, Rules for the Administration of the Oregon Safe Employment Act, was redesignated as OAR 437, Division 1, by APD Admin. Order 7-1988, filed 6/17/88. Its effective date remains 7/1/74.

Note: See Historical Notes on Page 1 for more complete list of amendments.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 33-1974, f. 9-5-74, ef. 9-26-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 7-1979, f. 8-20-79, ef. 9-1-79; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; WCD 12-1982, f. 6-28-82, ef. 8-1-82; WCD 3-1983, f. 1-31-83, ef. 2-1-83; WCD 9-1983, f. 11-15-83, ef. 11-15-83; WCD 2-1984, f. 3-2-84, ef. 3-15-84; WCD 12-1984, f. 9-20-84, ef. 11-1-84; WCD 9-1986, f. 10-7-86, ef. 12-1-86; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 5-1988, f. 5-16-88, ef. 5-16-88; APD 7-1988, f. 6-17-88, cert. ef. 7-1-74; OSHA 10-1990(Temp), f. & cert. ef. 5-31-90; OSHA 24-1990, f. & cert. ef. 10-10-90; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 8-2008, f. & cert. ef. 7-14-08

437-001-0010

Purpose and Scope of Rules

(1) These rules provide procedures by which the Division shall implement and enforce the Director's authority and responsibilities under the Act.

(2) The Director adopts OAR chapter 437, division 1, to assure, as far as possible, safe and healthful working conditions for every employee in Oregon, to preserve our human resources and to reduce the substantial burden which is created by occupational injury and disease.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 10-1990(Temp), f. & cert. ef. 5-31-90; OSHA 24-1990, f. & cert. ef. 10-10-90; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

437-001-0015

Definitions

The following definitions shall apply to OAR 437, unless the context requires otherwise:

Abatement – Action by an employer to comply with a cited violation of the Oregon Safe Employment Act.

Accepted disabling claims – Claims accepted for disabling occupational injuries or illnesses only. A disabling injury or illness entitles the worker to compensation for disability or fatality. This type of claim excludes temporary total disability suffered during the first three calendar days after the employee leaves work as a result of the injury unless the worker is an inpatient in a hospital.

Accepted disabling claims rate – The ratio of accepted disabling claims to annual average employment, times 100. Claims and employment figures are based upon the best knowledge of the Department at the time the rate is calculated (ADCR = Number of claims times 100 divided by the number of employees).

Act – The Oregon Safe Employment Act (ORS 654.001 to 654.295, 654.750 to 654.780, and 654.991).

Administrator – The Administrator of the Oregon Occupational Safety and Health Division (Oregon OSHA).

Affected employee – An employee who, in the course and scope of employment, may be or may have been exposed to a condition or practice described in a citation, order, application for an extension date, or variance.

Agent of the employer – Any supervisor or person in charge or control of the work or place of employment including, but not limited to, any manager, superintendent, foreperson, or lead worker.

Appeal – A written request for a hearing to contest a citation, notice or order, a proposed assessment of civil penalty, and the period of time fixed for correction of a violation, or any of these, by filing with Oregon OSHA, within 30 days after receipt of the citation, notice or order, a written request for a hearing before the Workers’ Compensation Board. Such a request need not be in any particular form, but must specify the alleged violation that is contested and the grounds upon which the employer considers the citation or proposed penalty or correction period unjust or unlawful.

Audiometric zero – The lowest sound pressure level that the average young adult with normal hearing can hear.

Board – The Workers’ Compensation Board created by ORS 656.712.

Catastrophe – An accident in which two or more employees are fatally injured, or three or more employees are admitted to a hospital or to an equivalent medical facility.

Citation – A document issued by Oregon OSHA according to ORS 654.071 to cite a violation. A citation may include a notice of penalty and a correction order.

Complaint – A written or oral report from an employee, employee representative or other person that an occupational safety or health violation may exist at a place of employment. A complaint may be classified as one of the following:

(a) Imminent danger

(b) Serious

(c) Other than serious

Compliance officer – A designated Oregon OSHA employee responsible for conducting inspections or investigations; identifying possible violations and hazards; proposing citations, penalties, and correction dates; and to assist employers and employees with information to correct violations and hazards.

Comprehensive consultation – A consultation to cover the entire establishment and entails a physical hazard assessment evaluation and a review of records, written programs, and the employer’s illness and injury prevention plan. Comprehensive consultations include a written report by the provider including findings, recommendations, and the guidance necessary to resolve the problems noted in the report.

Comprehensive inspection – A substantially complete inspection of the establishment. An inspection may be comprehensive even though, as a result of the exercise of professional judgment, not all potentially hazardous conditions, operations, and practices within those areas are inspected.

Consultant – A designated Oregon OSHA employee whose responsibility is to provide a full range of occupational safety and health assistance including, but not limited to, providing employers, employees, and other agency staff with information, advice, and recommendations on maintaining safe employment or a place of employment; on correcting violations or hazards; and on applicable occupational safety and health rules, techniques, devices, methods, practices, and development of safety and health programs.

DART (Days Away, Restricted, or Transferred) – The number of lost workday injury and illness cases experienced by 100 full-time workers (DART rate = Number of lost workday cases times 200,000 divided by the number of employee hours worked).

NOTE: Lost workday cases include both days away from work and days of restricted time.

Decibel (dB) – Unit of measurement of sound level. For purposes of this rule, decibels refer to the combined average of the readings at 2000, 3000, and 4000 Hz on the audiogram.

Department – The Department of Consumer and Business Services.

Director – The Director of the Department of Consumer and Business Services, or the director’s designee.

Division – The Oregon Occupational Safety and Health (Oregon OSHA) Division of the Department of Consumer and Business Services.

Emphasis Program – A special program that targets Oregon OSHA activity to industries that have a high potential for serious injuries or illnesses, according to national or state data.

Employee – Any individual, including a minor, whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, financial or otherwise and who is subject to the direction and control of an employer, and includes:

Salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts, and other public corporations.

Any person provided with workers’ compensation coverage as a subject worker under ORS Chapter 656, whether by operation of law or by election.

Employee exposure record – A record of monitoring or measuring that contains qualitative or quantitative information indicative of employee exposures to toxic materials or harmful physical agents. This includes both individual exposure records and general research or statistical studies based on information collected from exposure records.

Employee medical record – A record that contains information concerning the health status of an employee or employees exposed or potentially exposed to toxic materials or harmful physical agents. These records may include, but are not limited to:

(a) The results of medical examinations and tests;

(b) Any opinions or recommendations of a physician or other health professional concerning the health of an employee or employees; and

(c) Any employee medical complaints relating to workplace exposure. Employee medical records include both individual medical records and general research or statistical studies based on information collected from medical records.

Employee representative – A bargaining unit representative, or an individual selected by employees, who serves as their spokesperson.

Employer:

(a) Any person who has one or more employees, or

(b) Any sole proprietor or member of a partnership who elects workers’ compensation coverage as a subject worker according to ORS 656.128, or

(c) Any corporation in relation to the exposure of its corporate officers except for corporations without workers’ compensation coverage under ORS 656.128 and whose only employee is the sole owner of the corporation, or

(d) Any successor or assignee of an employer. For purposes of this definition and ORS 654.005(5)(c), a business or enterprise is substantially the same entity as the predecessor employer if:

(A) A majority of the current business or enterprise is owned by the former owners or their immediate family members, and

(B) One or more of the following criteria exist for both the current and predecessor business or other enterprise:

Substantially the same type of business or enterprise.

Similar jobs and working conditions.

A majority of the machinery, equipment, facility, or methods of operation.

Similar product or service.

A majority of the same supervisory personnel.

A majority of the same officers and directors.

NOTE: Not every element needs to be present for an employer to be a successor. The cumulative facts will determine the employer’s status.

Employer representative – An individual selected by the employer, to serve as spokesperson or, in the absence of a selected spokesperson, the person in charge of the place of employment at the time of the inspection.

Environmental exposure sampling – Sampling of the workplace environment performed for a variety of reasons including identifying contaminants and their sources, determining worker exposures, and checking the effectiveness of controls.

Establishment – An establishment is a single physical location doing business, offering services, or having industrial operations. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas, and sanitary services; and similar operations, the establishment is the main or branch office, terminal, station, etc. that either supervise such activities or are the base for personnel to carry out these activities.

(a) One location/multiple establishments. Normally, one business location has only one establishment. Under limited conditions, two or more separate businesses that share a single location

 

 

 

are separate establishments. An employer may divide one location into two or more establishments only when:

(A) Each of the establishments represents a distinctly separate business;

(B) Each business is engaged in a different economic activity;

(C) Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information. For example, if an employer operates a construction company at the same location as a lumber yard, each business can be a separate establishment.

(b) Multiple locations/one establishment. Only under certain conditions. An employer may combine two or more physical locations into a single establishment only when:

(A) The employer operates the locations as a single business operation under common management;

(B) The locations are all near each other; and

(C) The employer keeps one set of business records for all the locations, such as records on the number of employees, their wages and salaries, sales or receipts, and other kinds of business information. For example, one manufacturing establishment might include the main plant, a warehouse a few blocks away, and an administrative services building across the street.

(c) Telecommuting from home. For employees who telecommute from home, the employee’s home is not a business establishment, and a separate 300 Log is not required. Employees who telecommute must be linked to one of the business’ establishments under 437-001-0700(15)(c).

Farm operation – Any operation involved in the growing or harvesting of crops or the raising of livestock or poultry.

Filed – A document is considered to have been filed on the date of postmark if mailed, or on the date of receipt, if transmitted by other means to Oregon OSHA, DCBS, or the WCB.

First aid – Any one-time treatment and subsequent observation of minor scratches, cuts, burns, splinters, or similar injuries that do not ordinarily require medical care. Such one-time treatment and subsequent observation is considered first aid even though it is provided by a physician or registered professional personnel.

Fixed place of employment – The entire facility maintained by an employer at one general location, and operations provided from that facility, regardless of the size or number of departments or buildings in the facility. For the purpose of determining repeat violations, fixed place of employment includes employers or owners engaged in construction activity who will be at a single worksite continuously for more than 24 months. Forest activities are excluded as are construction sites established for a period of 24 months or less.

Hazard – A condition, practice, or act that could result in an injury or illness to an employee.

Health hazard – Health hazards mean carcinogens, lead, silica, toxic metals and fumes, vapors or gases, toxic or highly corrosive liquids or chemicals, chemical sensitizers, pesticides, fungicides, solvents, biological agents, and harmful physical stress agents.

Imminent danger – A condition, practice, or act that exists in any place of employment and could reasonably be expected to cause death or serious physical harm immediately.

Injury or illness – An injury or illness is an abnormal condition or disorder. Injuries include cases such as, but not limited to, a cut, fracture, sprain, or amputation. Illnesses include both acute and chronic illnesses, such as, but not limited to, skin disease, respiratory disorder, or poisoning. (Note: Record injuries and illnesses only if they are new, work-related cases that meet one or more of the recording criteria.)

Inspection – An official examination of a place of employment by a compliance officer to determine if an employer is in compliance with the Act.

(a) Programmed — Inspections conducted under the provisions of OAR 437-001-0057.

(b) Unprogrammed.

(A) Follow-up inspection – An inspection to determine if a previously identified violation has been corrected.

(B) Complaint inspection — An inspection made in response to a complaint.

(C) Accident investigation — A systematic appraisal of an accident sequence to determine causal factors, corrective actions and preventative measures.

(D) Referral inspection — An inspection made in response to a referral.

Letter of corrective action – A letter stating the corrective action(s) taken by the employer to comply with the violation(s) that were not corrected at the time of the inspection.

Lost workdays – The actual number of days after, but not including, the day of injury or illness when the employee would have worked, but could not perform all or any part of their normal assignment during all or any part of the employee’s next regular workday or shift because of the occupational injury or illness.

Medical treatment – Treatment administered by a physician or by registered professional personnel under the standing orders of a physician. Medical treatment does not include first aid treatment even though provided by a physician or registered professional personnel, nor does it include treatment ordinarily considered diagnostic or preventative in nature.

MOD (Experience Rating Modification Factor) – Experience rating recognizes the differences among individual insureds with respect to safety and loss prevention. It compares the experience of individual insureds with the average insured in the same classification. The differences are reflected by an experience rating modification, based on individual payroll and loss records, that may result in an increase, decrease, or no change in premium.

North American Industry Classification System (NAICS) – A classification system developed by the Executive Office of the President/Office of Management and Budget, for use in classifying establishments by the type of activity in which they are engaged. Each establishment is assigned an industry code for its major activity.

Order to correct – A written Oregon OSHA order that directs an employer to abate a violation within a given period of time.

Owner – Every person having ownership, control, or custody of any place of employment or of the construction, repair, or maintenance of any place of employment.

Partial inspection – An inspection with focus limited to certain potentially hazardous areas, operations, conditions, or practices at the establishment. The inspection may include review of injury and illness records and any required programs relative to the inspection.

Person – One or more individuals, legal representatives, partnerships, joint ventures, associations, corporations (whether or not organized for profit), business trusts, or any organized group of persons, and includes the state, state agencies, counties, municipal corporations, school districts, and other public corporations or subdivisions.

Personal exposure samples – Measurement of contaminants or physical agents to characterize the environment in the breathing or hearing zone of individual workers in order to evaluate their specific work exposures. Personal samplers are placed on the worker to obtain either one continuous sample covering a portion of the workday or consecutive samples covering a stated time period.

Physician or other licensed health care professional – A physician or other licensed health care professional is an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows them to independently perform, or be delegated the responsibility to perform, the activities described by this regulation.

Place of employment.

(a) Includes every place that is fixed or movable; indoors, outdoors, or underground; and the premises and structures appurtenant thereto.

(b) Includes every place where an employee works or intends to work either temporarily or permanently.

(c) Includes every place where there is any process, operation, or activity related, either directly or indirectly, to an employer’s industry, trade, business, or occupation, including a labor camp provided by an employer for their employees or by another person engaged in providing living quarters or shelters for employees.

(d) Does not include any place where the only employment involves nonsubject workers employed in or around a private home.

(e) Does not include any corporate farm where the only employment involves the farm’s family members, including parents, spouses, sisters, brothers, daughters, sons, daughters-in-law, sons-in-law, nieces, nephews, or grandchildren.

Record – Any recorded information regardless of its physical form or character.

Recordable occupational injuries or illnesses – Any occupational injuries or illnesses that result in:

(a) Fatalities, regardless of the time between the injury and death, or the length of the illness;

(b) Lost workday cases, other than fatalities, that prevent the employee from performing their normal assignment during any part of the employee’s next regular, or any subsequent workday or shift; or

(c) Nonfatal cases without lost workdays that result in transferring to another job or terminating employment, require medical treatment (other than first aid), or involve loss of consciousness or restriction of work or motion. This category also includes any diagnosed occupational illnesses that are reported to the employer but are not classified as fatalities or lost workday cases.

Referral – A notification made to the responsible agency of safety or health violations observed by an Oregon OSHA employee, other federal, state or local government representatives, or the media.

Rule – Any agency directive, standard, regulation or statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedures or practice requirements of the agency and is adopted according to the Administrative Procedure Act. The term includes the amendment or repeal of a prior rule, but does not include, unless a hearing is required by statute, internal management directives, regulations, or statements that do not substantially affect the interests of the public.

Scheduling list – An electronic or paper list of places of employment or employers scheduled for inspection.

Serious physical harm:

(a) Injuries that could shorten life or significantly reduce physical or mental efficiency by inhibiting, either temporarily or permanently, the normal function of a part of the body. Examples of such injuries are amputations, fractures (both simple and compound) of bones, cuts involving significant bleeding or extensive suturing, disabling burns, concussions, internal injuries, and other cases of comparable severity.

(b) Illnesses that could shorten life or significantly reduce physical or mental efficiency by inhibiting, either temporarily or permanently, the normal function of a part of the body, even though the effects may be cured by halting exposure to the cause or by medical treatment. Examples of such illnesses are cancer, pneumoconiosis, narcosis, or occupational infections (caused by biological agents), and other cases of comparable severity.

Standard industrial classification (SIC) – A classification system developed by the Office of Statistical Standards, Executive Office of the President/Office of Management and Budget, for classifying establishments by the type of activity in which they are engaged. Each establishment is assigned an industry code for its major activity, that is determined by the value of receipts or revenue for services rendered or products produced, or in some cases by the employment or payroll. The 1987 edition of the SIC manual is used for coding.

Standard threshold shift (STS) – A change in hearing threshold relative to the baseline audiogram of an average of 10 dB or more in either ear.

Substantially similar – As it relates to a repeat violation, a second violation that is closely related in substance or form to a previous violation.

Suspended penalty – A penalty that is determined but not assessed.

Variance – The written authority given by Oregon OSHA to an employer permitting the use of a specific alternative means or method to comply with the intent of a rule. Specific types of variances are:

(a) Permanent — A variance that remains in effect until modified or revoked according to OAR 437-001-0430;

(b) Temporary — A variance granted for a stated period of time to permit the employer to achieve compliance with a new rule;

(c) Research – A variance granted for a stated period of time to allow industrial or governmental research designed to demonstrate or validate new and improved safety or health techniques or products; and

(d) Interim order — The temporary authority for an employer to use an alternative means or method by which the employer effectively safeguards the safety and health of employees until final action can be taken on the variance request.

Violation – The breach of a person’s duty to comply with an Oregon occupational safety or health statute, regulation, rule, standard, or order.

(a) Specific classifications of violations are:

(A) Serious violation — A violation where there is substantial probability that death or serious physical harm could result from an existing condition, or from one or more practices, means, methods, operations, or processes that have been adopted or are in use in a place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know about the violation;

(B) Other than serious violation – A violation that is other than a serious or minimal violation; and

(C) Minimal violation — A violation that does not have a direct or immediate relationship to the safety or health of employees.

(b) Specific types of the above classifications are:

(A) Willful violation — A violation that is committed knowingly by an employer or supervisory employee who, having a free will or choice, intentionally or knowingly disobeys or recklessly disregards the requirements of a statute, regulation, rule, standard, or order.

(B) Unabated violation — A violation that has not been fully corrected by the date ordered.

(C) Repeat violation:

(i) An employer’s second or subsequent violation involving a substantially similar violation as the earlier violation or violations.

(ii) In these rules, repeat, repeated and repeatedly are used synonymously.

(D) First-instance violation — An employer’s first violation of a particular statute, regulation, rule, standard, or order.

(E) Egregious – Those conditions that normally constitute a flagrant violation of the Oregon Safe Employment Act, or Oregon OSHA standards, or regulations such that each instance of the violation is cited separately.

(c) Combined violation — Multiple violations of the same statute, regulation, rule, standard, or order within an establishment that have been combined as one violation to indicate an overall lack of compliance with a safety or health statute, regulation, rule, standard, or order.

(d) Grouped violation — Multiple violations of different statutes, regulations, rules, standards or orders, within an establishment that have been combined as one violation:

(A) To indicate an increase in the severity or probability of the violation, or

(B) Recordkeeping and posting requirements involving the same document, or

(C) The violations are so closely related as to constitute a single hazardous condition.

Stat. Auth.: ORS 654.025(2), 656.726(4)
Stats. Implemented: ORS 654.001 - 654.326, 654.412 - 654.423, 654.991
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD , 7-1979, f. 8-20-79, ef. 9-1-79; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; WCD 9-1983, f. & ef. 11-15-83; WCD 2-1984, f. 3-2-84, ef. 3-15-84; WCD 12-1984, f. 9-20-84, ef. 11-1-84; WCD 9-1986, f. 10-7-86, ef. 12-1-86; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 10-1990(Temp), f. & cert. ef. 5-31-90; OSHA 24-1990, F. & cert. ef. 10-10-90; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 6-1994, f. & cert. ef. 9-30-94; OSHA 2-1996, f. & cert. ef. 6-13-96; OSHA 5-1998, f. & cert. ef. 10-15-98; OSHA 7-1999, f. & cert. ef. 7-15-99; OSHA 11-1999(Temp), f. & cert. ef. 10-20-99 thru 4-14-00; OSHA 4-2000, f. 4-14-00, cert. ef. 4-15-00; OSHA 11-2001, f. 9-14-01, cert. ef. 1-1-02; OSHA 7-2002, f. & cert. ef. 11-15-02; OSHA 6-2003, f. & cert. ef. 11-26-03; OSHA 7-2006, f. & cert. ef. 9-6-06; OSHA 5-2007(Temp), f. & cert. ef. 9-5-07 thru 2-29-08; OSHA 1-2008, f. 2-22-08, cert. ef. 3-1-08; OSHA 2-2009, f. 1-27-09, cert. ef. 2-3-09; OSHA 10-2009, f. & cert. ef. 10-5-09; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0020

Authority to Administer

(1) The Administrator is hereby granted authority to do whatever is reasonably necessary or incidental to accomplish the purposes of the act and these rules.

(2) The Administrator shall administer the Voluntary Compliance Program separately from the enforcement activities. The Voluntary Compliance Program includes but is not limited to, education, consultations, demonstration programs and research.

(3) The Administrator shall name employees or classifications of employees who shall have authority to carry out the voluntary compliance and enforcement provisions of the Oregon Safe Employment Act.

(4) The official acts of the Administrator in administering and enforcing the Oregon Safe Employment Act, and the acts of those designated by the Administrator, shall be considered the official acts of the Director.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0025

Liberal Construction

The Act, other rules adopted thereunder, and these rules shall be liberally construed to accomplish the preventative purposes expressed in the Act.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0030

Use of Gender and Number

For the purpose of these rules, each gender includes the other gender, the singular includes the plural and the plural includes the singular.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0035

Occupational Safety and Health Rules

(1) The Division shall propose occupational safety and health rules for adoption by the Director. Proposed rules shall be:

(a) Reasonable;

(b) Mandatory;

(c) Designed to protect the life, safety and health of employees; and

(d) At least as effective as occupational safety and health rules adopted by the U.S. Department of Labor.

(2) In proposing rules for adoption, the Division may consider recommendations from national standards-setting organizations, the U.S. Department of Labor, National Institute of Occupational Safety and Health (NIOSH), Centers for Disease Control (CDC), employers, employees, employee representatives and the Division's occupational safety and health experience.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0045

Adoption, Amendment or Repeal of Rules

(1) Rules will be adopted, amended or repealed in accordance with ORS Chapter 183 and the Director's rules of practice and procedure applicable to rule-making functions.

(2) Any person may request the adoption, amendment or repeal of a rule.

(3) A request for adoption, amendment or repeal of a rule shall:

(a) Be in writing, addressed to the Administrator, OR-OSHA Division, Labor and Industries Building, Salem, Oregon 97310;

(b) Identify the rule proposed for adoption, amendment or repeal and include reasons for the change.

(4) Upon receipt of the request the Division shall within 30 days, either deny the request or initiate rule-making proceedings.

(5) If the request to adopt, amend or repeal a rule is denied, the Division shall state its reasons for the denial in writing. A copy shall be mailed to the person making the request and all other persons upon whom a copy of the request was served.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0047

Voluntary Compliance Program, General

(1) The Division shall provide a coordinated program to encourage voluntary compliance with occupational health and safety laws, rules and codes and to promote more effective workplace health and safety programs.

(2) The program shall be designed to assist employers achieve voluntary compliance and shall be administered to preclude issuance of citations and penalties except when an employer fails to correct serious violations identified.

(3) The program shall include but is not limited to:

(a) Health and safety consultative services;

(b) Worker and employer training and education;

(c) Research projects including: Causes and prevention of industrial accidents and diseases; trends demonstrating the need for licensing, certification, or need or revised rules;

(d) Demonstration projects utilizing new or innovative processes or procedures to assist workers and employers in preventing occupational injury or disease, whatever the cause;

(e) Publication and general distribution of training and accident prevention materials.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0050

Enforcement Program, General

The Division shall provide an effective program to enforce statutes, regulations, rules, standards or orders for the protection of life, safety and health of employees. This program shall include, but is not limited to:

(1) The inspection of places of employment;

(2) The investigation of industrial accidents, fatalities or catastrophes;

(3) Issuing citations for violations;

(4) Identifying safety and health hazards which may or may not be violations and bringing them to the attention of employers and employees;

(5) Issuing reasonable correction orders;

(6) Assisting employers and employees in safety and health matters;

(7) Assessing and collecting civil monetary penalties for violations;

(8) Holding informal conferences with employers or employees to discuss citations, penalties or correction orders and other safety and health matters without limiting or extending the employer's appeal rights; and

(9) Granting or denying extensions of the times set by correction orders.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0053

Preserving Physical Evidence at the Scene of an Accident

(1) Employers, their representatives, or others shall not disturb the scene of a fatality or catastrophe other than to conduct the rescue of injured persons or mitigate an imminent danger until authorized by the Administrator (or designee), or directed by a recognized law enforcement agency.

(2) In order to preserve physical evidence at the scene of a fatality or catastrophe, the Administrator is authorized to limit the number of employer representatives or employee representatives accompanying the compliance officer during the documentation of the scene. The employer representative and employee representative must be provided an opportunity to document the scene prior to disturbance or removal of physical evidence.

(3) If an employer, their representative or others disturb the scene of a fatality or catastrophe other than to conduct the rescue of injured person(s) or mitigate an imminent danger before authorized by the Administrator or directed by a recognized law enforcement agency, a minimum penalty of $200 may be assessed.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 7-1999, f. & cert. ef. 7-15-99

Inspections

437-001-0055

Priority of Inspections

Inspections will be prioritized to predominantly focus enforcement activities on places of employment reasonably believed to be the most unsafe. Inspections should generally be made according to the following priorities:

(1) Imminent danger -- An inspection should be made as soon as possible after the Division becomes aware of the condition, practice, or act that could reasonably be expected to immediately cause death or serious physical harm.

(2) Fatality, catastrophe or accident -- An inspection, if appropriate, should be made as soon as possible after the Division becomes aware of a fatality, catastrophe, or accident.

(3) Complaint -- An inspection may be initiated when the Division receives a complaint, based on the nature and credibility of the allegations.

(4) Referral -- An inspection may be made if safety or health violations were observed and referred by a Division employee; federal, state, or local government representative, or the media, based on the nature and credibility of the allegations.

(5) Programmed Inspections -- An inspection may be made by following the provisions in OAR 437-001-0057.

(6) Follow-up -- An inspection may be initiated when one or more of the following exists:

(a) The employer requests removal of a red warning notice.

(b) A variance request has been denied.

(c) An extension of time has been denied.

(d) The Division believes the employer may not be in compliance with a previously cited violation, or needs monitoring as they progress towards correction of a violation.

(e) The employer is issued an order to correct for one or more violations that if cited could be considered serious.

Stat. Auth.: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 654.001 - 654.326, 654.412 - 654.423 & 654.991
Hist.: WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 11-1999(Temp), f. & cert. ef. 10-20-99 thru 4-14-00; OSHA 4-2000, f. 4-14-00, cert. ef. 4-15-00; OSHA 10-2009, f. & cert. ef. 10-5-09

437-001-0057

Scheduling Inspections

The following rules are intended to predominantly focus enforcement activities on the places of employment that the director reasonably believes to be the most unsafe.

(1) The Division will schedule programmed inspections according to a priority system based on written neutral administrative standards.

(2) The Division will identify the most hazardous industries and places of employment through information obtained from the Department of Consumer and Business Services claim and employer files, the Bureau of Labor Statistics Occupational Injury and Illness Survey, the Bureau of Labor Statistics Census of Fatal Occupational Injuries, the Oregon Employment Department, and knowledge of recognized safety and health hazards associated with certain processes. Health hazards include carcinogens, lead, silica, toxic metals and fumes, vapors or gases, toxic or highly corrosive liquids or chemicals, chemical sensitizers, pesticides, fungicides, solvents, harmful physical stress agents, and biological agents.

(3) Scheduling lists will be provided by the Division to its field offices, at least annually.

NOTE: An employer will be exempt from a programmed inspection of a fixed site from seven days prior to the scheduled date of an Oregon OSHA consultation to 60 days after receipt of the written consultation report.

An employer will be exempt from a programmed inspection of a construction, forest activities or Agriculture Labor Housing site from seven days prior to the scheduled date of an Oregon OSHA consultation to 30 days after receipt of the written consultation report.

(4) Scheduling Safety Inspections for Fixed Places of Employment.

(a) The scheduling lists are compiled, using an electronic scheduling system, for safety enforcement managers to schedule inspections at fixed places of employment for each compliance officer. Written neutral administrative standards (the seven criteria listed below) are standardized using a statistical weighting method involving t-scores. These weighted scores are averaged across the seven criteria to create a composite score. This composite score is used to determine the position of each industry (using the 4-digit NAICS code) on the list from most to least hazardous. [Table not included. See ED. NOTE.] Lists are divided into 10 tiers. Places of employment are randomly selected for inspection within each tier using the following percentages whenever a list is generated. The percentages will not be affected by the places of employment excluded in (4)(b) unless the number of exclusions makes it impossible to meet the target percentage. When that occurs, all remaining eligible places of employment will be selected. The scheduling lists will be sorted by field office.

(A) 30 percent of places of employment under the NAICS identified as Tier A.

(B) 25 percent of places of employment under the NAICS identified as Tier B.

(C) 20 percent of places of employment under the NAICS identified as Tier C.

(D) 15 percent of places of employment under the NAICS identified as Tier D.

(E) 12.5 percent of places of employment under the NAICS identified as Tier E.

(F) 10 percent of places of employment under the NAICS identified as Tier F.

(G) 7.5 percent of places of employment under the NAICS identified as Tier G.

(H) 5 percent of places of employment under the NAICS identified as Tier H.

(I) 2.5 percent of places of employment under the NAICS identified as Tier I.

(J) No more than 0.05 percent of places of employment under the NAICS not otherwise identified in Tiers A through I.

(b) Places of employment will be exempt from programmed inspections if any of the following conditions apply:

(A) A location has received a comprehensive safety inspection within the previous 36 months.

(B) A location has received Voluntary Protection Program (VPP) status.

(C) A location is in its second year, or later, of the Safety and Health Achievement Recognition Program (SHARP).

(D) A location has graduated from the Safety and Health Achievement Recognition Program (SHARP). Locations are exempt from inspection for 36 months after graduation.

(E) A location has received two consecutive comprehensive safety inspections with no serious, willful, or egregious violations, and with no inspections of any type resulting in serious, willful, or egregious violations since the date of the first of the two consecutive comprehensive inspections.

(F) A location has received certification as meeting the British Standards Institute’s OHSAS 18001 standards (Occupational Health and Safety Management Systems). Evidence of certification must be provided before the start of an inspection.

(G) A location has a MOD rate of 0.50 and they provide evidence to that effect before the start of an inspection.

(c) The field office managers will provide each compliance officer a list of inspections that are assigned in descending order from tiers A through J. The compliance officer will make a reasonable effort to inspect each place of employment on that list prior to receiving another list; however, failure to inspect all places of employment on a list will not invalidate subsequent inspections. The compliance officer’s list will generally be followed in descending order but may be inspected in any order to use the compliance officer’s time efficiently.

(5) Scheduling Safety Inspections for Construction and Forest Activities.

(a) Construction and forest activities scheduling lists will be used by safety enforcement managers and compliance staff to focus enforcement efforts on employers with the most hazardous places of employment. Employers will be selected and placed on one of two lists based on the following criteria:

(A) Construction List — The following written neutral administrative standards will be used to select and rank employers on this list. Construction employers that have one or more accepted disabling claims in the first 12 of the previous 18 months and are ranked in the top 500 construction employers. The employers on this list will be ranked statewide using violation history, weighted claims rate, and weighted claims count as described in subsection (b) of this section. The 500 employers with the most points will be placed on a list.

(B) Forest Activities List — The following written neutral administrative standards will be used to select and rank employers on this list. Forest activities employers that have one or more accepted disabling claims in the first 12 of the previous 18 months and are ranked in the top 50 forest activities employers. The employers on this list will be ranked statewide using violation history, weighted claims rate, and weighted claims count as described in subsection (b) of this section. The 50 employers with the most points will be placed on a list.

(b) Ranking Factors: Construction and forest activities employers are ranked using violation history, weighted claims rate, and weighted claims count. The rankings from each factor are combined to produce a score for each employer, and the employers are ranked based on their score. The top 500 construction employers will be on one list and the top 50 forest activities employers will be on another list:

(A) Violation History: Employers with a violation history will be assigned points for each violation on citations that have become a final order within the previous 36 months. Willful violations are assigned five points, failure to abate violations four points, repeat violations three points, serious violations two points, and other-than-serious violations one point. Average points per citation will be determined with the employer having the most points receiving a ranking of one followed by the employer with the next highest points receiving a ranking of two, etc. Employers not inspected within 36 months are given a ranking of zero, that will put them at the top of this category.

(B) Weighted Claims Count: Selected claims from the first 12 of the previous 18 months are assigned points based on the seriousness of the claim. These points are totaled for each employer. Employers are ranked on the total points with the employer having the most points receiving a rank of one, followed by the second highest weighted claims count receiving a ranking of two, etc.

(C) Weighted Claims Rate: Employers are ranked in this category with the highest weighted claims rate receiving a ranking of one, followed by the second highest weighted claims rate receiving a ranking of two, etc. The weighted claims count described in (B) above is used to determine the claims rate.

NOTE: The selected claims and the points assigned to the selected claims will be identified by the agency in a program directive.

(c) The field office manager will provide selected compliance officers the construction and/or forest activities lists. The compliance officers will make a reasonable effort to locate and inspect those employers on the construction and forest activities lists, how- ever failure to inspect all employers on a list will not invalidate subsequent inspections.

(6) Scheduling Health Inspections for Fixed Places of Employment.

(a) The scheduling lists are designed as an electronic scheduling system used by health enforcement managers to schedule inspections at fixed places of employment for each compliance officer. Places of employment will be listed by NAICS and randomly selected within each tier using the following percentages whenever a list is generated. The scheduling lists will be sorted by field office.

(A) 7.5 percent of places of employment under the NAICS identified as Tier A.

(B) 2.5 percent of places of employment under the NAICS identified as Tier B.

(C) Not more than 0.05 percent of places of employment under NAICS not identified in Tiers A and B.

(b) Places of employment will be exempt from programmed inspections if any of the following conditions apply:

(A) A location has received a comprehensive health inspection within the previous 36 months.

(B) A location has received Voluntary Protection Program (VPP) status.

(C) A location is in its second year, or later, of the Safety and Health Achievement Recognition Program (SHARP).

(D) A location has graduated from the Safety and Health Achievement Recognition Program (SHARP). Locations are exempt from inspection for 36 months after graduation.

(E) A location has received two consecutive comprehensive health inspections with no serious, willful, or egregious violations, and with no inspections of any type resulting in serious, willful, or egregious violations since the date of the first of the two consecutive comprehensive inspections.

(F) A location has received certification as meeting the British Standards Institute’s OHSAS 18001 standards (Occupation Health and Safety Management Systems). Evidence of certification must be provided before the start of an inspection.

(G) A location has a MOD rate of 0.50 and they provide evidence to that effect before the start of an inspection.

(c) The field office managers will provide each compliance officer a list of inspections that are assigned in descending order from the health scheduling lists. The compliance officer will make a reasonable effort to inspect each place of employment on that list prior to receiving another list; however, failure to inspect all places of employment on a list will not invalidate subsequent inspections. The compliance officer’s list will generally be followed in descending order, but may be inspected in any order to use the compliance officer’s time efficiently.

(7) Scheduling Health Inspections for Nonfixed Places of Employment — An inspection may be scheduled when information such as recognized health hazards known to be associated with certain processes are reasonably thought to exist at a place of employment.

(8) Random Inspections — The Division will conduct random inspections of places of employment that are scheduled and conducted under written neutral administrative standards. Program directives will be issued and changed when the director believes it necessary to preserve the random nature of the inspections.

(9) Emphasis Inspections — An inspection may be made if the place of employment is included in a national or local safety or health emphasis program. Emphasis programs are established by identifying the most hazardous industries and processes through information obtained from the Department of Consumer and Business Services claim files, the Bureau of Labor Statistics Occupational Injury and Illness Survey, the Oregon Employment Department, and knowledge of recognized hazards associated with certain processes. Program directives will be issued to establish and describe emphasis programs and the written neutral administrative standards that will be used to schedule the inspections.

(10) Farm Labor Housing Inspections — Farm labor housing is a national and local emphasis program. A list of all known farm labor housing locations will be sent to field offices annually. Locations may be selected and inspected in any order to make efficient use of available resources. Housing locations not on the list may also be inspected. Farm labor housing is not an agricultural operation; therefore, the agriculture exemption for employers of 10 or fewer permanent, year-round employees does not apply to farm labor housing inspections.

(11) The Division will annually make reasonable efforts to notify, in writing, each employer whose place of employment is rated as one of the most unsafe places of employment, that there is increased likelihood of inspection of the employer’s place of employment and consultative services are available.

(12) Agricultural employers with 10 or fewer permanent, year-round employees, both full-time and part-time, will be subject to scheduled inspections only if any of the following has occurred:

(a) A valid complaint has been filed according to ORS 654.062, or

(b) Within the preceding two-year period, an accident at the employer’s agricultural place of employment resulted in death or a serious disabling injury from a violation of the Oregon Safe Employment Act or rules adopted under the act, or

(c) The employer and principal supervisors of the agricultural establishment have not annually completed at least four hours of instruction on agricultural safety or health rules and procedures. This instruction must be documented.

(A) Instruction includes any instruction conducted or accepted by Oregon OSHA or instruction related to agricultural safety and health that is offered or approved by any public or private college, university, or governmental agency. The employer must maintain documentation of the instruction. The documentation must include the date, provider, subject, and duration of the instruction, and the signature of the person completing the instruction.

NOTE: Certified Applicator Training Core A and B offered by the Oregon Department of Agriculture will satisfy a portion of the required training. One hour credit will be allowed annually for this training.

(B) For purposes of these sections, the time period begins to run when the instruction is received, or

(d) Within the preceding four-year period, the agricultural establishment has not had a comprehensive consultation by an individual acting in a public or private consultant capacity. For purposes of this section, the time period begins to run when the consultation is received, or

(e) If the consultation was done and the agricultural employer has failed to correct violations noted in the consultation report within 90 days after receiving the report.

NOTE: For purposes of determining the number of employees, members of the agricultural employer’s immediate family are excluded. This includes grandparents, parents, children, step-children, foster children, and any blood relative living as a dependent of the core family.

(13) Evaluation of Enforcement Scheduling:

(a) Each year Oregon OSHA will complete a summary evaluation of enforcement scheduling, including (but not limited to) the number of scheduled inspections and the basis for those inspections, the number of attempted scheduled inspections that could not be completed, and the results of those inspections.

(b) At least every three years beginning by July 1, 2012, Oregon OSHA will assess the enforcement scheduling system and other available data to ensure that the scheduling system continues to accomplish its statutory purpose of predominantly focusing Oregon OSHA enforcement resources on those places of employment reasonably believed to be the most unsafe.

NOTE: See Safety by NAICS, Safety by Tier/Rank, Health by NAICS, to review safety and health scheduling lists of employers identified by NAICS codes and their placement in appropriate tiers.

[ED. NOTE: Tables referenced are not included in rule text. Click here for PDF copy of tables.]

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.326, 654.412 - 654.423 & 654.991
Hist.: WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 10-1995, f. & cert. ef. 11-29-95; OSHA 2-1996, f. & cert. ef. 6-13-96; OSHA 11-1999(Temp), f. & cert. ef. 10-20-99 thru 4-14-00; OSHA 4-2000, f. 4-14-00, cert. ef. 4-15-00; OSHA 7-2006, f. & cert. ef. 9-6-06; OSHA 10-2009, f. & cert. ef. 10-5-09; OSHA 2-2011, f. 9-29-11, cert. ef. 10-1-11

437-001-0060

Advance Notice

(1) No person shall give advance notice of an inspection without authority of the Director, subject to penalties as prescribed in ORS 654.991(2).

(2) If the Director approves a request for advance notice of an inspection:

(a) The notice shall not be given more than 24 hours in advance; and

(b) When advance notice is given to the employer, the employer shall, without delay, notify the employee representative of the proposed inspection, or in the absence of an employee representative, immediately post a notice in a sufficient number of locations in the place of employment to reasonably inform employees of the planned inspection. Any employer who fails to notify the employees, through posting, of the proposed inspection shall be assessed a penalty not to exceed $1,000 as prescribed in ORS 654.086(1)(f).

(3) It will not be considered advance notice to advise a federal or state agency of a proposed inspection in order to avoid duplicate inspections or to facilitate enforcement.

(4) Any person who gives advance notice of any safety or health inspection without authority from the director or his designee shall be punished, upon conviction, by being assessed a penalty not to exceed $1,000 or be imprisoned for not more than six months, or both, as prescribed in ORS 654. 991(2).

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-7-4, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0065

Right of Entry

(1) A Compliance Officer has the right to enter and inspect any place of employment during working hours or at other reasonable times, within reasonable limits, and in a reasonable manner.

(2) Right of Entry. A compliance officer is authorized to document an accident scene reported pursuant to OAR 437-001-0700(21) prior to an opening conference when it is likely that the accident scene cannot be preserved and after a reasonable attempt is made to contact an employer or employer representative.

(3) A Compliance Officer shall present his/her credentials to an employer or employer's representative to establish the Compliance Officer's right of entry.

(4) The Compliance Officer shall not sign any form of liability release or agree to waive any rights of the Department.

(5) The Compliance Officer shall have the right to enter and inspect any place of employment accompanied or assisted by outside engineers or specialists who have signed confidentiality agreements, agreeing to protect the inspected parties' trade secrets.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1999, f. & cert. ef. 7-15-99; OSHA 7-2002, f. & cert. ef. 11-15-02

437-001-0070

Inspection Warrants

If an OSS/OHS is denied entry, the APD may institute action to obtain an inspection warrant, as provided for in ORS 654.202 to 654.216.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0075

Opening Conference

(1) The Compliance Officer shall, if possible, conduct a joint opening conference with the employer or a representative, and a representative of the employees, if any, and shall:

(a) Present credentials as a means of identification;

(b) Explain the purpose, nature and intended scope of the inspection;

(c) Request the records which need to be examined;

(d) Obtain the name of the employer representative, if any, and give that person the opportunity to accompany the Compliance Officer on the inspection;

(e) Obtain the name of the employee representative, if any, and give that person the opportunity to accompany the Compliance Officer on the inspection;

(f) Explain that employee participation may be accomplished through random interviews;

(g) Determine if there are trade secrets to be protected;

(h) Inform the employer that sampling may be done and photographs may be taken;

(i) Explain that past and present efforts will be evaluated to determine good faith penalty adjustments.

(j) Determine what personal protective equipment is required in the place of employment and arrange to have and use such equipment; and

(k) Explain that a closing conference will be held with both the employer or a representative, and a representative of the employees, if any.

(2) Where the Compliance Officer decides it is not practical to hold a joint conference, separate conferences shall be held for the employer or a representative, and a representative of the employees, if any. Notes shall be taken by the Compliance Officer during the separate conferences; these will be available upon request.

(3) Where separate conferences are necessary, the Compliance Officer shall determine if their conduct will delay observation or evaluation of workplace safety or health hazards. In such cases, the conferences shall be brief and, if appropriate, reconvened after the Compliance Officer’s inspection of the place of employment.

(4) Where the holding of an opening conference will prevent timely evaluation of the workplace, it may be abbreviated to a simple introduction and identification of the Compliance Officer. The remainder of the opening conference will be covered as soon as possible.

Stat. Auth.: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0080

Inspection Without Employer or Employer Representative

(1) An Compliance Officer may make an inspection without an opening or closing conference if the employer or employer representative is absent or declines to participate.

(2) If the employer, employer representative or employee representative is absent from the place of employment, following the inspection the Compliance Officer shall make at least one attempt on each of two different days to advise the employer, employer representative or employee representative concerning the inspection.

(3) No inspection will be made if neither the employer, employer representative, nor employees are present at the place of employment, except when executing an inspection warrant as provided in ORS 654.216(2) or when posting a Red Warning Notice as provided for in ORS 654.082.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1974, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0085

Employee Representation on Inspection Team

(1) An employee representative has the right to accompany an Compliance Officer during an inspection of the place of employment.

(2) If there is no employee representative during an inspection, the Compliance Officer shall interview, if practicable, a reasonable number of employees about safety and health in the place of employment.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0090

Inspection Procedures

During an inspection an Compliance Officer is authorized to:

(1) Inspect without unreasonably disrupting operations in a place of employment all required records, conditions, structures, materials and methods for compliance with statutes, regulations, rules, standards and orders, and identify and document hazards;

(2) Photograph or video tape unsafe acts, practices, procedures or physical hazards;

(3) Take environmental and personal exposure samples;

(4) Allow a different employer representative or employee representative to accompany the Compliance Officer during separate phases of the inspection if this will facilitate the inspection;

(5) Resolve all disputes as to who is the representative authorized by the employees to accompany the Compliance Officer on the inspection.

(6) Deny the right to participate to any person whose conduct interferes with a fair and orderly inspection;

(7) Inform the employer representative and employee representative of any apparent violations, and hazards;

(8) Collect, including but not limited to, information for the purpose of classifying any apparent violations as minimal, other than serious, or serious and collect data for the purpose of calculating penalty assessment;

(9) Interview privately a reasonable number of employees about safety and health in the place of employment;

(10) Receive information in confidence from an employee or employee representative; and

(11) Stop the inspection if a situation involving imminent danger is observed, request the employer or the employer representative to advise affected employee and correct the imminent danger, and post a Red Warning Notice according to OAR 436-046-0096, if the employer or the employer representative refuses to protect the employees from the imminent danger.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

437-001-0096

Red Warning Notice

(1) The Red Warning Notice shall be authorized by either the Director, Administrator, Manager of Enforcement, or Field Office Supervisors. For purposes of this rule, a Camp Closure Notice is a Red Warning Notice.

(2) When action is necessary to preclude or eliminate exposure of employees to a condition which, if such exposure occurred or continued, would constitute a violation of any statute or of any lawful regulation, rule, standard or order, affecting employee safety or health at a place of employment, a Compliance Officer shall obtain permission to post a Red Warning Notice. The notice shall be posted in plain view of any person likely to use the place of employment, machine, device, apparatus or equipment that constitutes the hazard.

(3) Any place of employment, machine, device, apparatus or equipment on which a Red Warning Notice has been posted shall not be operated or used by any person until:

(a) The condition has been made safe and healthful; and

(b) The Red Warning Notice has been removed by the Division; however,

(c) Nothing in this section prohibits an employer from using any place of employment, or operating any machine, device, apparatus or equipment, exclusively for the purpose of remedying the violation, pursuant to the instructions on the Red Warning Notice.

(4) No person shall deface or destroy a Red Warning Notice, or remove it without authorization from the Division.

(5) The Red Warning Notice will be removed after:

(a) Notification from the employer that the condition has been corrected; and

(b) A follow-up inspection or other information confirms that the condition has been corrected.

(6) Any person who violates or directs another to violate OAR 437-001-0096(3) or (4) shall be assessed a civil penalty of not less than $100 and not more than $5000 for each such violation.

(7) Any employer who violates or directs an employee to violate OAR 437-001-0096(3), and the violation is determined to be a willful violation, may be assessed a civil penalty of not less than $5,000 and not more than $70,000.

Stat. Auth.: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 6-2003, f. & cert. ef. 11-26-03

437-001-0099

Closing Conference

(1) The OSS/OHS shall, if practicable, conduct a joint closing conference with the employer or a representative, and a representative of the employees, if any, and shall advise these representatives:

(a) Of any violation(s) as a result of the inspection and of any hazards which at this time may not be a violation;

(b) Of the right to present any pertinent information regarding the violation(s);

(c) That a citation shall be issued for all other than serious or serious violations even if the violations were corrected at the time of the inspection;

(d) That penalties may be imposed for other than serious violations and shall be imposed for serious violations;

(e) That a reasonable time for correction of each alleged violation shall be proposed;

(f) That further correspondence separate from the citation regarding the inspection will be received detailing the nonviolation hazards observed during the inspection;

(g) Of all posting requirements contained in OAR 437-001-0275 and 437-001-0280;

(h) That if the employer fails to correct any violation by the date indicated on the citation, additional penalties may be imposed for each day the violation(s) remains uncorrected (see OAR 437-001-0235);

(i) Of employee protection against discrimination (see OAR 437-001-0295);

(j) Of appeal rights contained in ORS 654.078 and OAR 438-085-0006 to 438-085-0870;

(k) Of rights to an informal conference (see OAR 437-001-0255);

(l) Of extension procedures (see OAR 437-001-0240);

(m) Of consultative services available through the Department and workers' compensation insurance carriers (see OAR 437-001-0450 through 437-001-0465);

(n) Of variance procedures (see OAR 437-001-0400 through 437-001-0435);

(o) Of the possibility of follow-up inspections;

(p) That if any safety or health condition was encountered which was beyond the expertise of the Compliance Officer, that condition will be considered a referral and may be addressed by another representative of the OR-OSHA Division;

(q) Of the availability of return visits by the Compliance Officer to assist the employer in obtaining compliance.

(2) Where the Compliance Officer decides it is not practical to hold a joint conference, separate conferences shall be held for the employer or a representative, and a representative of the employees, if any. Notes shall be taken by the Compliance Officer during the separate conferences; these will be available upon request.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

Violations and Penalties

437-001-0135

Evaluation of Probability to Establish Penalties

(1) The probability of an accident which could result in an injury or illness from a violation shall be determined by the Compliance Officer and shall be expressed as a probability rating.

(2) The factors to be considered in determining a probability rating may include, as applicable:

(a) The number of employees exposed;

(b) The frequency and duration of exposure;

(c) The proximity of employees to the point of danger;

(d) Factors, which require work under stress;

(e) Lack of proper training and supervision or improper workplace design; or

(f) Other factors which may significantly affect the degree of probability of an accident occurring.

(3) The probability rating is:

(a) Low -- If the factors considered indicate it would be unlikely that an accident could occur;

(b) Medium -- If the factors considered indicate it would be likely that an accident could occur; or

(c) High -- If the factors considered indicate it would be very likely that an accident could occur.

(4) The probability rating may be adjusted on the basis of any other relevant facts which would affect the likelihood of injury or illness.

Stat. Auth: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 16-1990(Temp), f. & cert. ef. 7-26-90; OSHA 25-1990(Temp), f. & cert. ef. 10-31-90

437-001-0140

Evaluation of Severity to Establish Penalties

(1) A severity rating for each violation shall be determined by the Compliance Officer on the basis of the degree of injury or illness which is reasonably predictable. If more than one injury or illness is reasonably predictable, the Compliance Officer will determine the severity based upon the most severe injury or illness. Severity ratings will be selected from the following schedule:

(a) Other than Serious -- Conditions that could cause injury or illness to employees but would not include serious physical harm;

(b) Serious Physical Harm; or

(c) Death.

(2) The severity rating may be adjusted on the basis of any other relevant facts which would affect the severity of the possible injury or illness.

Stat. Auth: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 16-1990(Temp), f. & cert. ef. 7-26-90; OSHA 18-1990(Temp), f. & cert. ef. 8-15-90; OSHA 25-1990(Temp), f. & cert. ef. 10-31-90; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

437-001-0145

Penalty for Other than Serious or Serious Violation

(1) A penalty must be assessed for any serious violation and may be assessed for any other than serious violation as established by the intersection of the probability rating and severity rating on the Penalty Schedule (Table 1). In a case where probability and severity are not appropriate considerations, a penalty may be assessed by considering the facts of the violation. [Table not included. See ED. NOTE.]

(2) Penalty adjustments will be made based on an employer’s size for all violations except failure to correct. Additional adjustments for an employer’s compliance history, injury and illness history, demonstrated good faith efforts and corrective action taken at the time of the inspection will be determined by the Compliance Officer and assessed as follows:

(a) Size adjustments – based on state wide peak employment. [Table not included. See ED. NOTE.]

(b) History adjustments will be based on injuries and illnesses (and trends) during the previous three years, including available information from both Workers’ Compensation data and Bureau of Labor Statistics. This assessment will also include a review of the employer’s violation history within the past 3 years. Adjustments will be made as follows:

(A) 10% reduction if the compliance officer determines that the information demonstrates a positive history overall.

(B) No reduction if the compliance officer determines that history is what would be expected of a typical employer.

(C) 10% increase if the compliance officer determines that the information demonstrates a negative history overall.

(c) Good faith adjustments will be determined by, but not limited to, review of certain criteria as follows:

(A) Evidence of an overall safety and health program.

(B) Effective communication of safety and health policies.

(C) Promotion of safety and health prior to the inspection.

(D) Employees are clearly involved in the safety and health program.

(E) Management’s commitment at all levels is apparent.

(F) Worksite hazard analysis is conducted.

(G) Employees and managers alike are held accountable for safety and health.

Adjustments will be made as follows:

(H) 20% reduction in penalties if the compliance officer determines that the information demonstrates a better than average effort to comply with the law and rules.

(I) No adjustment if the compliance officer determines that the information demonstrates an employer’s good faith effort is at the norm.

(J) May increase penalties by 20% if the compliance officer determines that the information demonstrates a poorer than normal effort to comply with the law and rules.

(d) A 10% reduction will be provided for immediate corrections of violations or other unsafe conditions identified during the inspection provided that such corrective action is substantial and not temporary or superficial.

(3) Penalty adjustments, except for size, will not be applied to repeat violations, willful violations or to any violation which the compliance officer determines contributed to an injury, illness or death of an employee. Adjustments will not reduce the penalty to less than the mandatory minimum penalty which has been established by rule or statute or increase them beyond the maximum penalty established by statute.

(4)The adjusted penalty for a serious violation will not be less than $100.

(5) Penalties for combined violations will be calculated by taking the number of violations into account when assessing probability. Severity will be determined by identifying the most severe reasonably predictable injury or illness that could occur.

(6) The penalty for grouped violations of different rules is calculated by determining the probability and severity for the entire group.

(7) The Administrator may assess a penalty of up to $7,000 for any violation after considering the facts.

[ED. NOTE: Tables referenced are not included in rule text. Click here for PDF copy of table(s).]

Stat. Auth: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; WCD 12-1982, f. 9-20-84, ef. 11-1-84; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 5-1988, f. 5-16-88, ef. 5-16-88; APD 7-1988, f. 6-17-88, ef. 7-1-74;
OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 7-1995, f. & cert. ef. 7-5-95; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-1

437-001-0155

Determination of Penalty — Failure to Correct

(1) A citation shall be issued for an employer's nonabatement of a violation.

(2) Penalties of not more than $7,.000 per day for failure to correct a violation:

(a) May be assessed for each work day, or part of a day, that the violation results in continued exposure after the ordered correction date;

(b) Shall be determined by considering the probability and severity of the original violation, the efforts of the employer to correct the violation, and factors which delayed the employer in correcting the violation; and

(c) If failure to correct the violation results from the employer's lack of diligence, the penalty shall not less than $50 for other than serious violations, and not less than $250 for serious violations, for each day or part of a day, during which the violation remains uncorrected.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

437-001-0160

Penalty Criteria — Repeat Violation

Oregon OSHA will identify repeat violations as follows:

(1) An employer’s second or subsequent violation involving a substantially similar violation, cited within the previous three years, will be cited as a repeat violation as described below.

(2) When citing an identical standard for a violation of a previously cited statute, regulation, rule, standard or order it will be presumed to be a repeat violation. That presumption can be disproven only if the circumstances clearly demonstrate that the violation is not substantially similar to a previously cited violation.

Example: Previously a citation was issued for a violation of 1910.212(a)(1) for not guarding in-going nip points. A recent inspection of the same establishment revealed a citation of 1910.212(a)(1) for not guarding against flying chips and sparks. Although the same standard was cited, the hazardous conditions are clearly not substantially similar and a repeat violation would not be appropriate.

(3) When citing a different standard, in some circumstances, substantially similar conditions can be demonstrated. In such cases, if the violations found are substantially similar a repeat violation would be appropriate even though the standards are different.

Example #1: Previously a citation was issued for a failure to install appropriate scaffold guardrails under the Division 3 Construction standards. A recent inspection of the same employer found a violation for a failure to install appropriate scaffold guardrails, but this time the operation involved activities covered by the Division 2 General Industry standard. Although two different standards are cited, the violations are substantially similar and would therefore be treated as a repeat.

Example #2: Previously a citation was issued for failure to have a respirator program in a Division 2 General Industry situation where exposure to asbestos would require one. A recent inspection of the same employer found a violation for not requiring employees to wear respirators while performing lead related tasks in the Lead, Division 3 Construction standard that requires respiratory protection. Although two different standards are cited, the violations are substantially similar and would therefore be treated as a repeat.

(4) Where a previously cited violation is under appeal and not yet final:

(a) The second violation will be cited as a repeat violation; and

(b) Such citation will state that the earlier violation is under appeal and the repeat classification of the current violation will be rescinded if the earlier violation does not become final.

(5) At fixed places of employment, “high serious” and “death” rated violations will be issued as repeat violations at all of an employer’s places of employment in the state. Repeat violations for all other violation types will be limited to the cited place of employment.

(6) At nonfixed places of employment, repeat violations will be based on earlier violations occurring anywhere within the state. Where the Administrator, or designee, determines in his or her discretion that the span of control and nature of activity for a portion of the state is more readily comparable to fixed location activity, repeat violations will be handled in a manner consistent with fixed places of employment.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCD 5-1978. f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74; APD 7-1989(Temp), f. & ef. 5-1-89; APD 10-1989, f. & cert. ef. 7-7-89; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 6-1994, f. & cert. ef. 9-30-94; OSHA 2-2009, f. 1-27-09, cert. ef. 2-3-09; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0165

Determination of Penalty — Repeat Violation

(1) The penalty for a repeat violation will be calculated by multiplying the penalty for the current violation by the following factors: [Table not included. See ED. NOTE.]

(2) The total penalty for a repeat violation will not be less than $200, nor more than the statutory maximum of $70,000.

(3) For a repeated other than serious violation that otherwise would have no initial penalty, a penalty of $200 will be assessed for the first repeated violation, $500 if the violation has been cited twice before, and $1,000 for a third repeat.

[ED. NOTE: Tables referenced are not included in rule text. Click here for PDF copy of table(s).]

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 9-1-76; WCB 33-1974, f. 9-5-74, ef. 9-26-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74; APD 7-1989(Temp), f. & cert. ef. 5-1-89; APD 10-1989, f. & cert. ef. 7-7-89; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0170

Determination of Penalty -- Failure to Report an Occupational Fatality, Catastrophe, or Accident

If an employer fails to report an occupational fatality, catastrophe, or accident as provided in OAR 437-001-0700(21), a penalty of not less than $250, nor more than $7,000, shall be assessed.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 7-2002, f. & cert. ef. 11-15-02

437-001-0171

Determination of Penalty -- Failure to Register a Farm Labor Camp/Facility

If an operator, employer or contractor fails to register a Farm Labor Camp or facility with Oregon OSHA as required in Division 4/J, 437-004-1120(5)(b), a penalty of not less than $250 nor more than $7,000, shall be assessed.

Stat. Auth.: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 315.164, 658.750, 658.755, 658.780, 658.785, 658.805, 658.810 & 658.825
Hist.: OSHA 9-1995, f. & cert. ef. 11-29-95; OSHA 6-2003, f. & cert. ef. 11-26-03

437-001-0175

Determination of Penalty -- Willful or Egregious Violation

For a willful violation, the Administrator, after considering the facts of the violation, may assess a penalty of not less than $5,000, or more than $70,000. The base penalty will normally be multiplied by 25. For egregious violations, the Administrator may assess a separate penalty for each instance of a violation.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 8-1985, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0176

Determination of Penalty -- Failure to Notify Employees of Advance Notice

The Administrator, after considering the related facts, may assess a penalty not to exceed $1,000 for each violation of the employer's failure to give notification by posting to employees of advanced notice.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0180

Determination of Penalty -- Relating to Red Warning Notice

The Administrator, after considering the related facts, shall assess a penalty of not less than $100 and not more than $5,000 for each violation of the restrictions imposed by a Red Warning Notice (see OAR 437-001-0096(3) or (4)).

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0201

Determination of Penalty -- Relating to Field Sanitation

The Administrator shall assess a civil penalty of not less than $250 and not more than $2,500 to employers of workers who are engaged in field activities for the growing and harvesting of food crops intended for human consumption, who substantially fail to comply with OAR 437-004-0110 in Division 4, Agriculture.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 9-1986, f. 10-7-86, ef. 12-1-86; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0203

Determination of Penalty -- Relating to Violations Which Have No Probability and Severity.

(1) Safety and Health Protection on the Job Poster. If the employer has not displayed the poster, a minimum penalty of $100 may be assessed.

(2) Annual Summary -- If an employer fails to post the summary portion of the OSHA 300 Form no later than February 1 of the year following the year covered by the records and keep it posted until April 30 in accordance with 437-001-0700(17)(d)(A), a minimum penalty of $200 may be assessed.

(3) Citation -- If an employer fails to post the citation after receipt, a minimum penalty of $200 may be assessed.

(4) OSHA 300 and DCBS 801 Forms -- If the employer does not maintain the Log and Summary of Occupational Injuries and Illnesses, OSHA 300 Form, and the Supplementary Record, DCBS Form 801 or equivalent, a minimum penalty of $100 may be assessed for each OSHA form not maintained.

(5) Access to Records -- If the employer fails upon request to provide records for inspection and copying by any authorized representative of OR-OSHA or by any employee, former employee, or authorized representative of employees, a minimum penalty of $100 may be assessed for each form not made available.

(6) Flush Toilets/Warm Water Hand Washing Facilities -- If an employer fails to provide flush toilets or warm water hand washing facilities on a construction site according to OAR 437-003-0020 in 437, division 3, Construction, a penalty of not less than $200, nor more than $2,500, shall be assessed.

[ED. NOTE: Forms referenced are available from the agency.]

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.086
Hist.: APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 10-1995, f. & cert. ef. 11-29-95; OSHA 11-2001, f. 9-14-01, cert. ef. 1-1-02; OSHA 6-2003, f. & cert. ef. 11-26-03; OSHA 9-2008, f. 9-19-08, cert. ef. 1-1-09

Citations and Correction

437-001-0205

Citation and Notice of Penalty

(1) If the Division concludes from the review of an inspection report that a rule or order was violated, a citation will be issued to the employer which shall:

(a) State the name of the employer, place of employment, and date of inspection. If the violation occurred on other than the inspection date, the date of the violation will be included;

(b) Describe factually the nature and location of the violation;

(c) State the type of violation, if other than general;

(d) Identify the rule or order violated;

(e) Fix a time for the correction of each violation not corrected at the time of inspection;

(f) State the penalty for each violation;

(g) Identify which, if any, penalties are suspended;

(h) State the total dollar amount of assessed penalties;

(i) Inform the employer of the right to appeal the citation, the civil penalty or the period of time fixed for correction of the violation to the Board;

(j) Inform affected employees of their right to appeal the time fixed for correction of the violation; and

(k) Notify the employer that the citation becomes a final order if an appeal is not filed within 30 days of receipt of the citation by the employer.

(2) Citations and notices of penalties will be served on employers by certified mail, in person, or any method acceptable to the employer.

(3) Each employee representative shall be sent a copy of all citations and notices of penalties issued.

Stat. Auth.: ORS 654.025(2), 656.726(4))
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 10-2007, f. 12-3-07, cert. ef. 1-1-08; OSHA 2-2009, f. 1-27-09, cert. ef. 2-3-09

437-001-0215

Employer Response to Citation and Notice of Penalty

(1) After receipt of a citation, the employer shall:

(a) Promptly post the citation for employees information for 3 days or until the violation is corrected, whichever occurs last;

(b) Assure that any amendments or withdrawals to a citation are posted with the original citation for 3 days or until the violation is corrected, whichever occurs last;

(c) Correct each violation by the date ordered; and

(d) If no appeal is filed, remit any penalty by the 31st calendar day following receipt of the citation.

(2) The above requirements shall not limit an employer's appeal rights.

Stat. Auth.: ORS 654.025(2), 656.726(4))
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 10-2007, f. 12-3-07, cert. ef. 1-1-08

437-001-0220

Payment of Penalties

(1) All civil penalties become due and owing after the citation becomes a final order.

(2) If payment is not received within 20 days after the order becomes final, it may be docketed as a judgment as provided by ORS 654.086(3).

Stat. Auth.: ORS 654.025(2), 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 10-2007, f. 12-3-07, cert. ef. 1-1-08

437-001-0225

Penalty for Falsification

(1) An employer who knowingly makes any false statement, representation or certification regarding the correction of a violation shall be assessed a civil penalty of not less than $100 and not more than $2,500.

(2) An employer who knowingly makes any false statement, representation or certification regarding the correction of a violation, and that violation is found to have caused or materially contributed to the death of any employee, shall be penalized according to the provisions of ORS 654.991(3). In such cases, the Administrator shall contact the appropriate local district attorney for assistance and possible prosecution.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0230

Correction of Violation

(1) The employer must correct any violation the employer has been ordered to correct except when:

(a) The abatement date of an other than serious violation has been appealed;

(b) An extension has been granted in accordance with OAR 437-001-0240.

(2) If the violation is corrected at the time of inspection, the correction shall be noted in the Compliance Officer’s inspection report. However, such correction shall not provide immunity from the issuance of a citation for the violation.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0231

Abatement Verification

(1) When an employer receives a citation for a violation of the Oregon Safe Employment Act, the employer must notify the appropriate OR-OSHA field office of the corrective action taken to comply with each cited violation by Letter of Corrective Action. Such notification must occur within 10 calendar days after the last abatement date on the citation.

(2) When the compliance officer notes that violations are complied with at the time of the inspection, abatement verification for those violations is not required.

(3) The employer's verification that abatement is complete must include, for each cited violation, the date and method of abatement and a statement that affected employees and their representatives have been informed of the abatement.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0235

Failure to Correct Violation

If a subsequent inspection reveals that a violation was not corrected, or was only partially corrected, by its correction date, a notice shall be issued to the employer which:

(1) Gives the date and number of the citation which first alleged the violation;

(2) Identifies the uncorrected violation and the date by which it was ordered to be corrected;

(3) Advises the employer of the non-abatement days accumulated to the date of notice;

(4) Advises the employer that daily penalties shall continue to accumulate until the violation is corrected; and

(5) Notifies the employer to advise the indicated field office immediately upon correction of the violation.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0240

Extension of Correction Date -- Application

(1) An employer may apply for an extension of the date for correcting a violation.

(2) An application for extension of correction date shall be in writing to the OR-OSHA Division, 350 Winter St. NE, Salem, Oregon 97310, or received by any office of the Department.

(3) The application for extension must include:

(a) The name and address of the employer;

(b) The location of the place of employment;

(c) The citation number;

(d) The item number of the violation for which the extension is sought;

(e) The reason for the request;

(f) Any interim steps being taken to safeguard employees against the cited hazard during the requested extended correction period;

(g) The date by which the employer proposes to complete the correction; and

(h) A statement that a copy of the request for extension has been posted as required by OAR 437-001-0275(2) or for at least 10 days, whichever is longer, and, if appropriate, served on the authorized representative of affected employees, and certification of the date upon which such posting or service was made.

(i) Any employee who feels a posted request for an extension is unjust may contact the Administrator for a review of the matter.

(4) The application shall be postmarked or received by the Department no later than the correction date of the violation for which the extension is requested. For good cause, the Administrator may approve exceptions to this rule.

Stat. Auth.: ORS 654.025(2), 656.726(4))
Stats. Implemented: ORS 654.001-654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 10-2007, f. 12-3-07, cert. ef. 1-1-08

437-001-0245

Extension of Correction Date -- Decision

(1) A request for extension of the correction date shall be granted or denied on the basis of information in the application, information from employees and any other relevant information.

(2) If the request for extension is granted, a notice of extension of correction date shall be sent to the employer. The notice shall:

(a) Include notice of the right of affected employees or their representative to appeal the extension; and

(b) Be posted for employee's information until the violation is corrected.

(3) If the request for extension is denied, the Administrator shall, with reasonable promptness, inform the employer in writing of the reasons for such denial, and of the employees' and employer's rights to appeal the Administrator's decision.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0250

Extension of Correction Date -- Revocation

The Administrator may, for good cause, revoke an extension of correction date.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0251

Extension of Correction Date -- Hearing on the Application

Affected employees or the employee representative shall be given the opportunity to request a hearing on an application for an extension of the correction date:

(1) Requests for hearings shall be made in the following manner:

(a) The request shall be made within ten (10) days of posting the application;

(b) A request shall be made to the Administrator and shall contain:

(A) A concise statement of facts showing how the employee(s) would be affected by the extension of correction date;

(B) A statement opposing the extension of the correction date and a concise summary of the evidence supporting the opposition; and

(C) Any views or arguments on any issue of fact or law presented.

(2) Notice of hearing shall be given by the Administrator to affected persons and shall contain:

(a) Time, place and nature of hearing;

(b) Legal authority under which the hearing will be held; and

(c) The issues to be discussed.

(3) The hearing shall be conducted by the Administrator in a manner which will allow all affected persons to submit information on the application.

(4) At any hearing conducted to determine the merits of an extension request, the person requesting the extension of compliance time shall have the burden of proof regarding the request.

(5) The Administrator shall evaluate all information submitted at the hearing and make a determination on the merits of the application.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 6-1982, f. 6-28-82, ef. 8-1-82; WCD 3-1983, f. 1-31-83, ef. 2-1-83; APD 7-1988, f. 6-17-88, ef. 7-1-74

Informal Conferences

437-001-0255

Requesting an Appeal and an Informal Conference

(1) In order to appeal a citation, a written request for appeal must be filed with the Department of Consumer and Business Services and must be directed to the Oregon Occupational Safety and Health Division at 350 Winter St. NE, Room 430, Salem, Oregon 97310, or with any permanently staffed office of the Workers’ Compensation Board or Oregon OSHA. The appeal must be filed within 30 days of receiving a citation, notice or order, if the employer intends to contest any proposed assessment of civil penalty, the time fixed for correction of a violation or the violative condition cited. The request must clearly state the item(s) to be contested. An employee appeal of the time fixed for correction of a violation must also be filed within 30 days of the employer’s receipt of the citation, notice or order.

(2) An informal conference may be requested by either the employer or employee and used to discuss informally with Oregon OSHA any matter affecting occupational safety and health in the place of employment including, but not limited to:

(a) Clarify statements of observed violations;

(b) Discuss safety and health requirements;

(c) Discuss abatement dates;

(d) Explain the penalty system;

(e) Improve employer/employee understanding of the Oregon Safe Employment Act;

(f) Correct errors;

(g) Narrow issues, or

(h) Negotiate a settlement agreement with an employer to resolve disputed citations that have not become a final order.

(i) Notwithstanding any other rule in this division, proposed civil penalties may be reduced as part of a settlement agreement resolving disputed claims.

(3) A request for an informal conference alone will not be considered as an appeal to the Workers’ Compensation Board (although the same document may both request an informal conference and serve notice of an appeal, provided that it includes the required elements). An informal conference concerning a citation will not extend the 30 days allowed for filing an appeal with the Board.

(4) Informal conferences scheduled to negotiate settlement agreements require that the employer notify employees or their representatives of the opportunity to attend.

(5) When both a request for an informal conference and an appeal have been submitted, the appeal request will be forwarded to the Workers’ Compensation Board to be scheduled for a formal hearing if issues are not resolved at the informal conference.

Stat. Auth.: ORS 654.025(2), 656.726(4)
Stats. Implemented: ORS 654.001-654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 7-1999, f. & cert. ef. 7-15-99; OSHA 10-2007, f. 12-3-07, cert. ef. 1-1-08; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0265

Amendment, Reissue or Withdrawal of Citation

(1) When the Division identifies an error or errors in the citation, the Administrator may, for good cause, amend, reissue or withdraw a citation provided:

(a) Such action will not reduce the occupational safety and health protection of affected employees;

(b) No appeal has been filed with the Board to contest the citation;

(c) The time for filing an appeal has not expired; and

(d) The employee representative, if any, has been notified of the proposed amendment.

(2) The employer receiving an amendment or withdrawal shall post the document as required by OAR 437-001-0275(2).

(3) An amendment or withdrawal of an appealed citation or order shall be made in accordance with the Board's rules (OAR 438) for contested cases. The administrator shall notify the employee representative of any proposed settlement or withdrawal made according to OAR 438.

(4) Any withdrawal, or amendment of an appealed citation that reduces the penalty or extends the correction times of an alleged serious or willful violation shall not be made without written approval of the Director.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 6-2003, f. & cert. ef. 11-26-03

437-001-0270

Discretion To Prevent a Manifest Injustice

(1) To prevent a manifest injustice, the Administrator, at the Administrator's own discretion or upon request from the Division or an adversely affected person, may vacate or amend a Division citation, notice or order.

(2) If the Administrator proposes to vacate or amend a Division citation, notice or order, an opportunity to be heard will be given to persons, including affected employees, whose rights may be affected.

(3) All requests for reconsideration based on a manifest injustice shall contain a statement indicating the following:

(a) The request has been posted as required by OAR 437-001-0275(2);

(b) The request has been served on the authorized representative of affected employees, if appropriate;

(c) The date the request was posted or service was made; and

(d) All affected employees have been advised of their right to comment.

(4) No decision shall be made on a manifest injustice request until 10 days after the date of posting or service.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist. WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 6-1982, f. 6-28-82, ef. 8-1-82; WCD 3-1983, f. 1-31-83, ef. 2-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 6-2003, f. & cert. ef. 11-26-03; OSHA 7-2006, f. & cert. ef. 9-6-06

Posting

437-001-0275

Posting Requirements

(1) Where OAR 437, Division 1, requires an employer to inform affected employees by posting, copies of the unedited notice or other document shall be posted promptly upon receipt in one or more places where it will readily be observable by affected employees (for example, a location where employees report each day or at a location from which the employees operate to carry out their activities).

(2) The following documents shall be posted as specified:

(a) The Safety and Health Protection on the Job poster shall be posted permanently;

(b) A copy of any citation received by the employer shall be posted for three days or until the violation(s) is corrected, whichever occurs last;

(c) A copy of any amendment or withdrawal of a citation shall be posted with the original citation for three days or until the violation(s) is corrected, whichever occurs last;

(d) A copy of any notice of extension of correction date shall be posted until the violation(s) is corrected;

(e) A copy of any settlement shall be posted for ten days or until all violations have been corrected, whichever occurs last;

(f) A copy of any Notice of Hearing issued by the Hearings Division shall be posted until the hearing date;

(g) A copy of the variance application shall be posted until a final variance order is issued and posted;

(h) A copy of any variance order shall be posted for 20 days;

(i) A copy of any interim order relating to a variance shall be posted as long as it is in effect;

(j) A copy of any request for extension of correction date shall be posted until the Administrator informs the employer the extension has been granted or denied;

(k) A copy of a request for reconsideration of a citation, notice or order under the manifest injustice provision of OAR 437-001-0270 shall be posted along with the citation until the request has been granted or denied; and

(l) A copy of any feasibility determination relating to engineering controls shall be posted for 20 days for review by employees.

(m) A Field Sanitation Notice (available from the Department of Consumer and Business Services, OR-OSHA Division) shall be posted permanently by affected employers engaged in the production of food crops intended for human consumption. (See OAR Chapter 437, Division 4, Agriculture, OAR 437-004-0110(8)).

(n) An informational notice of the farm worker camp registration provided by the Department.

(3) If the employer fails to comply with the requirements of OAR 437-001-0275(2), the Administrator may assess a civil penalty of not more than $1,000 for each violation.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 315.164, ORS 654.086, ORS 658.750, ORS 658.755, ORS 658.780, ORS 658.785, ORS 658.805, ORS 658.810 & ORS 658.825
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; WCD 3-1983, f. 1-31-83, ef. 2-1-82; WCD 9-19986, f. 10-7-86, ef. 12-1-86; APD 5-1988, f. & ef. 5-16-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 9-1995, f. & cert. ef. 11-29-95; OSHA 10-1995, f. & cert. ef. 11-29-95; OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0280

Posting on Selected Multi-Employer Jobsites

At a multi-employer jobsite, the owner or the owner's designated prime contractor may be directed to post a notice in a conspicuous manner in a sufficient number of locations throughout the jobsite to reasonably inform the Compliance Officer and the affected employees of the following:

(1) The name and usual jobsite location of each employer and employer representative, on each work shift, who is designated to accompany the Compliance Officer during a safety or health inspection of the jobsite; and

(2) The employee's right to report a hazard to the employer's designated representative.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

Complaints

437-001-0285

Form and Content of a Complaint

Any person may complain to the Administrator of possible violations of any statute or of any lawful regulation, rule, standard or order affecting employee safety or health at a place of employment. A complaint, whether oral or written, should specify:

(1) The name of the employer;

(2) The location of the place of employment;

(3) Where the condition or practice occurs in the place of employment;

(4) The nature and frequency of the hazard;

(5) The number of employees affected by the condition or practice;

(6) The way in which the complaint is affected by the condition or practice; and

(7) Whether the complainant desires the complainant's name and address to be kept confidential.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0290

Division Action on Complaints

(1) At the complainant's request, in writing, their identity shall be kept in confidence. Any employee of the Department who fails to maintain that confidence is subject to disciplinary action.

(2) Complaint inspections shall be scheduled as provided for in OAR 437-001-0055(3).

(3) Any person making a complaint to the Division shall receive written notice of the Division's action if the complainant's address is provided.

(4) Any complainant who feels that the complaint was not adequately investigated by the Division may contact the Administrator for a review of the matter.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0295

Discrimination Complaint

(1) An employee or prospective employee may file a complaint as provided in ORS 654.062(5) if the employee believes discrimination has occurred because:

(a) The employee opposed a practice forbidden by, or engaged in a practice provided for, in the Oregon Safe Employment Act; or

(b) The employee refused in good faith to be subjected to imminent danger provided the employer refused to correct the hazard or it was not possible to notify the employer of the danger and the employee has notified the OR-OSHA Division or other appropriate agency, of the hazard, unless excused on the basis of insufficient time or opportunity as stated in OAR 839-003-0025, Bureau of Labor and Industries rules.

(2) The complaint shall be filed with the Commissioner of the Bureau of Labor and Industries, 800 NE Oregon Street, Portland, Oregon 97232, within 90 days after the employee had reasonable cause to believe discrimination occurred. The complaint may also be filed in any Circuit Court of the State of Oregon.

(3) The complaint may also be filed with the U.S. Department of Labor, 3056 Federal Office Building, Seattle, Washington 98174 as stated in 29 CFR 1977.15.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001-654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-2002, f. & cert. ef. 11-15-02; OSHA 8-2007 f. & cert. ef. 12-3-07

Variances

437-001-0400

Application for a Variance

(1) Any employer may apply for a variance from any rule which specifically affects working conditions. This application may be submitted:

(a) On a form provided by Oregon OSHA; or

(b) In any written form that includes all information required by OAR 437-001-0400(2) and (3).

(2) An application for a variance must contain:

(a) The name and address of the employer;

(b) The address and location of the place of employment;

(c) The rule, identified by number, from which the variance is sought;

(d) The type of variance desired (see OAR 437-001-0015);

(e) The means by which employees will be protected from the hazard until final action is taken on the variance request;

(f) A description of the means proposed to be used to provide employment which is as safe and healthful as that obtained by compliance with the rule;

(g) Certification that all affected employees have been informed of the application and of their right to comment on it by;

(A) Giving a copy of the variance application to the authorized employee representative;

(B) Posting a statement giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted (or in lieu of such summary, the posting of the application itself); and

(C) By other appropriate means.

(h) A description of how employees have been informed of the application and of their right to comment on it to the Administrator, Oregon OSHA, 350 Winter St. NE, Salem, Oregon, before it becomes final.

(i) A statement of whether the employer has previously filed application for a similar variance with any state or federal agency.

(3) If the employer is applying for a research variance, the application must contain the following additional information:

(a) The purpose and contribution of the intended research;

(b) A discussion of the research methods;

(c) The research schedule, including the projected completion date;

(d) A description of the hazards to which employees may be exposed and the steps to be taken to protect the employees safety and health;

(e) Biographical information to indicate the competence of the research staff;

(f) Assurances that the project will be funded adequately; and

(g) Assurances that Oregon OSHA will be given a copy of the research report prepared under the variance. However, no trade secret, patented or patentable material or data need be submitted by the employer.

(4) If the employer is applying for a temporary variance, the application must contain the following additional information:

(a) A statement of facts why the applicant is unable to comply with the rule by the effective date which is supported by representations from qualified persons having firsthand knowledge of the facts and include data on:

(A) Unavailability of professional or technical personnel; or

(B) Unavailability of materials and equipment needed; or

(C) Inability to complete the construction or alteration of facilities by the effective date.

(b) An effective program including a timetable for complying with the rule; and

(c) The specific steps taken to protect employees against the hazard.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001-654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0405

Interim Order Relating to a Variance

(1) An employer applying for a variance may request an interim order to be effective until final action is taken on the variance application. The request for an interim order:

(a) May be included in the variance application;

(b) Must include all information required by OAR 437-001-0400(2); and

(c) Must state the reasons why the interim order should be granted.

(2) The Administrator, or designee, will decide whether to issue an interim order on the basis of information provided in the application.

(3) If an interim order is granted, it will be sent to the employer. The employer must inform affected employees by posting a copy of the interim order for as long as the order is in effect.

(4) If an interim order is granted, the action will be published in the manner required by OAR 437-001-0410(1).

(5) If the interim order is denied, the employer will be given prompt written notice of, and the reasons for, the denial.

(6) An interim order or a written denial must include notice of the employer’s and employees’ appeal rights as contained in ORS 654.056 and OAR 438-085-0006 through 438-085-0870.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001-654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0410

Administrative Action on Variance Application

(1) After a variance request is determined to be complete and procedurally adequate, as provided in OAR 437-001-0400, Oregon OSHA will publish the request for one day in at least one daily newspaper with general circulation throughout Oregon. The notice will include:

(a) The name of the applicant;

(b) The rule, also identified by number, from which the variance is sought;

(c) A brief description of the variance request;

(d) Notice of opportunity for public comment and hearing;

(e) Information on how interested persons may learn of Oregon OSHA’s decision on the variance application; and

(f) The address of the Oregon OSHA office from which further information may be obtained.

(2) Oregon OSHA may conduct an on-site review of the equipment or processes involved in the requested variance.

(3) A variance, if granted, will have no retroactive effect. It will not be the basis for amending or withdrawing a citation.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001-654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 33-1974, f. 9-5-74, ef. 9-26-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0411

Hearings for Variance Applications

Affected employers or employees will be given the opportunity to request a hearing on an application.

(1) Request for hearings must be made in the following manner:

(a) The request must be made within 30 days of publication of the application;

(b) A request must be made to Oregon OSHA and must contain:

(A) A concise statement of facts showing how the employer or employee would be affected by the relief applied for;

(B) A statement opposing any or all portions of the application, and a concise summary of the evidence supporting each item opposed; and

(C) Any views or arguments on any issue of fact or law presented.

(2) A notice of hearing will be given to affected persons that contains:

(a) Time, place and nature of hearing;

(b) Legal authority under which the hearing will be held; and

(c) The issues to be discussed.

(3) The hearing will be conducted in a manner that will allow all affected persons to submit information on the application.

(4) All information submitted will be evaluated at the hearing and a determination made on the merits of the application.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001-654.295
Hist.: WCD 67-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0415

Criteria for Variance Approval

(1) An application for a permanent variance will be granted only if the applicant demonstrates, and Oregon OSHA determines, including consideration of employee or public comments, that the conditions, practices, operations or processes proposed by the applicant will provide employment that is as safe and healthful as that obtained by compliance with the rule.

(2) An application for a temporary variance will be granted only if the applicant demonstrates, and Oregon OSHA determines, including consideration of employee or public comments, that the applicant is unable to comply with a new rule by its effective date, that the applicant has an effective program for complying with the rule by the agreed upon timetable and that all available steps are being taken in the interim to safeguard employees against the hazard covered by the rule.

(3) An application for a research variance will be granted only if the applicant demonstrates, and Oregon OSHA determines, including consideration of employee or public comments, that the conditions, practices, operations or processes used adequately safeguard employees against the hazards covered by the rule, while demonstrating or validating new or improved safety or health techniques or products.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001-654.295
Hist.: WCD (Safety) 5-1978, f. 6-22-78, cert. ef. 8-15-78; WCD (Safety) 4-1981, f. 5-22-81, cert. ef. 7-1-81; WCD (Safety) 6-1982, f. 6-28-82, cert. ef. 8-1-82; APD 7-1988, f. 6-17-88, cert. ef. 7-1-74; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0420

Decision on Variance Request

(1) If a variance is granted, an order of variance will be issued. The order will include:

(a) The name of the employer to whom the variance is granted;

(b) The place of employment where the variance is applicable;

(c) The type of variance granted;

(d) The specific rule to which the variance applies;

(e) The alternative methods or safeguards to be used by the employer while the variance is in effect;

(f) Notice that the employer may be cited for any violation of the conditions established by the variance;

(g) Information of employees’ right to appeal the variance decision; and

(h) Information that if no appeal is filed within 30 days of receipt of the order, the variance approval becomes final and subject to review only as specified in OAR 437-001-0430.

(2) If a variance is denied, a notice of denial will be issued. The notice will include:

(a) The reasons for the denial;

(b) Employer and employee appeal rights;

(c) Information that if no appeal is filed within 30 days of receipt of the notice, the variance denial becomes a final decision without affecting the employer’s right to submit another application; and

(d) Information advising the employer that a compliance inspection may be made within 30 days.

(3) A copy of any variance order or denial must be posted for 20 days.

(4) A variance that has been denied, or that has expired, may be followed by a compliance inspection within 30 days.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.326, 654.412 - 654.423 & 654.991
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 10-2009, f. & cert. ef. 10-5-09; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0425

Employer's Duty to Meet Variance Terms

(1) A variance is not effective until the employer has complied with its terms and requirements.

(2) An employer may be cited for violating the terms of a variance. (See ORS 654.022)

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0430

Modification or Revocation of a Variance

(1) A variance may be modified or revoked after it has been in effect 6 months or longer upon:

(a) Receiving a request from the employer, an affected employee or an employee representative containing:

(A) The name and address of the applicant;

(B) A description of the relief which is sought;

(C) A statement setting forth with particularity the grounds for relief;

(D) If the applicant is an employer, a certification that the applicant has informed affected employees of the application by:

(i) Giving a copy to their authorized representative;

(ii) Posting at the place or places where notices to employees are normally posted, a statement giving a summary of the application and specifying where a copy of the full application may be examined (or, in lieu of the summary, posting the application itself); and

(iii) Other appropriate means.

(E) If the applicant is an affected employee, they must provide a copy of the application to the employer; and

(F) Any request for a hearing, as provided for in these rules.

(b) Notification and confirmation that the alternative methods or safeguards required by the variance are not fully complied with; or

(c) An Oregon OSHA review.

(2) Oregon OSHA will post the proposed modifications or revocations on the Oregon OSHA web site at www.orosha.org for 30 days. The posting will include:

(a) The name of applicant;

(b) The rule, also identified by number, from which the variance had been granted;

(c) A brief description of the variance and why relief is sought;

(d) Notice of opportunity for public comment and hearing and that a request for hearing will be made within 20 days of publication;

(e) Information on how interested persons may learn of Oregon OSHA’s decision on the variance; and

(f) The address of the Oregon OSHA office from which further information may be obtained.

(3) Oregon OSHA may conduct an on-site review of the equipment or processes involved in the proposed, revoked or modified variance.

(4) The employer and affected employees will be advised in writing of modification or revocation of the variance. The modification or revocation order will include:

(a) The name and address of the employer;

(b) The address and location of the place of employment involved;

(c) The rule, identified by number, from which the variance was granted;

(d) The type of variance issued;

(e) The reasons for modification or revocation of the variance; and

(f) The employer’s and affected employees appeal rights.

(5) Any request for a hearing will be made within 30 days of publication and must include a short and plain statement of:

(a) How the proposed modification or revocation would affect the requesting party; and

(b) What the requesting party would seek to show on the subjects or issues involved.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 6-2003, f. & cert. ef. 11-26-03; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0435

Effect of a Variance Granted by the U.S. Secretary of Labor

(1) If an employer requesting a variance from an Oregon rule submits proof that a variance from an equivalent federal rule has been granted by the U.S. Secretary of Labor, the federal variance will be accepted in lieu of the information required by OAR 437-001-0400, Application for a Variance.

(2) If an employer is cited for violating an Oregon rule equivalent to a federal rule for which a variance has been granted by the U.S. Secretary of Labor, and all conditions of that variance are being met, the Administrator will consider the federal variance as a possible defense against the citation.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001-654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

Consultative Services for Public and Private Sector Employers

437-001-0450

Voluntary Compliance Consultative Services

(1) The Administrator shall provide consultative services to assist employers in preventing occupational injury and disease, whatever the cause.

(2) Consultative services may include providing technical information, but shall not intrude into the business of engineering firms or professional consultants.

(3) When federal funds are utilized to conduct consultative services, the provisions contained in 29 CFR 1908, Consultation Agreement, shall apply.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1974, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. n7-1-74; OSHA 1-1991(Temp), f. & cert. ef. 1-28-91; OSHA 5-1991, f. & cert. ef. 3-18-91

437-001-0455

Application for Consultative Services

Employers may make a verbal or written request for consultative services. A request must:

(1) Be made by an employer to a representative of the Division;

(2) Identify the employer and the location where the consultation is desired; and

(3) Define the specific problem or hazard, or other reason for the request.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0460

Consultation

When a consultant responds to a request for a consultative service, the employer shall be advised:

(1) Of the purpose of the visit;

(2) Of the Administrative Rules and Standard Operating Procedures pertaining to consultative services; and

(3) That the consultation need not be limited to the specific problems or hazards contained in the request for consultative service, but may also include, at the request of the employer, assistance in developing a plan to correct hazardous conditions, and other services including but not limited to:

(a) Health and safety program assessments;

(b) Training on specific health and safety issues; and

(c) Other assistance designed to promote more effective workplace health and safety programs.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. n7-1-74; OSHA 1-1991(Temp), f. & cert. ef. 1-28-91; OSHA 5-1991, f. & cert. ef. 3-18-91

Recordkeeping and Reporting

437-001-0700

Recordkeeping and Reporting

(1) Purpose. This rule requires employers to record and report work-related fatalities, injuries and illnesses.

NOTE: Recording or reporting a work-related injury, illness, or fatality does not assign fault to anybody, does not prove the violation of an OSHA rule, nor establish the employee’s eligibility for workers’ compensation or other benefits.

(2) Scope. This standard covers all employers covered by the Oregon Safe Employment Act. However, most employers do not have to keep OR-OSHA injury and illness records unless the Director informs them in writing that they must keep records. For example, employers with 10 or fewer employees and business establishments in certain industry classifications are partially exempt from keeping OR-OSHA injury and illness records.

(3) Partial Exemptions.

(a)(A) If your company never had more than ten (10) employees during the last calendar year, you do not need to keep OR-OSHA injury and illness records unless the Director informs you in writing that you must keep records. However, all employers covered by the Oregon Safe Employment Act must report to OR-OSHA any workplace fatality, the hospitalization of three or more employees, or overnight hospitalizations. (See (21) below)

(B) The partial exemption for size is based on the number of employees in the entire company.

(b) If your company had more than ten (10) employees at any time during the last calendar year, you must keep OR-OSHA injury and illness records unless your business is in a specific low hazard retail, service, finance, insurance or real estate industry in Table 1. [Table not included. See ED. NOTE.] If so, you do not need to keep OR-OSHA injury and illness records unless the government asks you to keep the records under 437-001-0700(23).

(c) If one or more of your company’s establishments are classified in a nonexempt industry, you must keep OR-OSHA injury and illness records for all of such establishments unless your company is partially exempted because of size under 437-001-0700(3)(a). If a company has several business establishments engaged in different classes of business activities, some of the company’s establishments may be required to keep records, while others may be exempt.

(4) Alternate or Duplicate Records. If you create records to comply with another government agency’s injury and illness recordkeeping requirements, those records meet OR-OSHA’s recordkeeping requirements if OR-OSHA accepts the other agency’s records under a memorandum of understanding with that agency, or if the other agency’s records contain the same information as this standard requires you to record. Contact your nearest OR-OSHA office for help in determining if your records meet OR-OSHA’s requirements. Table 1 — Partially Exempt Industries [Table not included. See ED. NOTE.]

(5)(a) Recording Criteria and Forms. This describes the work-related injuries and illnesses that an employer must enter on the OR-OSHA records and explains the OR-OSHA forms that employers must use to record work-related fatalities, injuries, and illnesses.

(b) Each employer required to keep records of fatalities, injuries, and illnesses must record each fatality, injury and illness that:

(A) Is work-related; and

(B) Is a new case; and

(C) Meets one or more of the general recording criteria of OAR 437-001-0700(8) or the application to specific cases of OAR 437-001-0700(9) through (13). Table 2 — Related rules. [Table not included. See ED. NOTE.] Graphic [Graphic not included. See ED. NOTE.]

(6) Work-Related. An injury or illness is work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. You presume work-relatedness for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in Table 3 specifically applies. [Table not included. See ED. NOTE.]

(a) If you are notified that a former employee has had a work related injury or illness, record the date of the incident on the appropriate OSHA 300 log for the date of the injury. If the date is not known use the last day of employment.

NOTE: OR-OSHA defines the work environment as the establishment and other locations where one or more employees work or are present as a condition of their employment. The work environment includes not only physical locations, but also the equipment or materials used by the employee during the course of their work. Injuries occurring during travel are work-related if the employee was engaged in work activities in the interest of the employer and it is not one of the exceptions in Table 4. [Table not included. See ED. NOTE.] If it is not obvious where the precipitating event occurred you must evaluate the employee’s work duties and environment to decide whether events or exposures in the work environment either caused or contributed to the condition or significantly aggravated a pre-existing condition.

(b) A pre-existing injury or illness is significantly aggravated when an event or exposure in the work environment results in any of the following:

(A) Death, provided that the pre-existing injury or illness would likely not have resulted in death but for the occupational event or exposure.

(B) Loss of consciousness, provided that the pre-existing injury or illness would likely not have resulted in loss of consciousness but for the occupational event or exposure.

(C) One or more days away from work, or days of restricted work, or days of job transfer that otherwise would not have occurred but for the occupational event or exposure.

(D) Medical treatment in a case where no medical treatment was needed for the injury or illness before the workplace event or exposure, or a change in medical treatment was necessitated by the workplace event or exposure. Table 3 & Table 4 [Tables not included. See ED. NOTE.]

(c) Work at home. Injuries and illnesses that occur while an employee works at home, including work in a home office, is work-related if the injury or illness relates directly to the work rather than to the general home environment or setting.

(7) New Cases. An injury or illness is a “new case” if:

(a) The employee has no previous recorded injury or illness of the same type that affects the same part of the body, or

(b)(A) The employee previously had a recorded injury or illness of the same type that affected the same part of the body but recovered completely (all signs and symptoms disappeared) from the previous injury or illness and an event or exposure in the work environment caused the signs or symptoms to reappear.

(B) For occupational illnesses where the signs or symptoms may recur or continue in the absence of a workplace exposure, record the case only once. Examples include occupational cancer, asbestosis, byssinosis and silicosis.

NOTE: You are not required to seek the advice of a physician or other licensed health care professional. If you do seek such advice, you must follow their recommendation about whether the case is a new case or a recurrence.

(8) General Recording Criteria. An injury or illness meets the general recording criteria, and is recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. You must record a case if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.

NOTE: OR-OSHA believes that most significant injuries and illnesses will result in one of the events listed below. However, there are some significant injuries, such as a punctured eardrum or a fractured toe or rib, for which neither medical treatment nor work restrictions may be recommended. In addition, there are some significant progressive diseases, such as byssinosis, silicosis, and some types of cancer, for which medical treatment or work restrictions may not be recommended at the time of diagnosis but are likely to be recommended as the disease progresses. Cancer, chronic irreversible diseases, fractured or cracked bones, and punctured eardrums are generally considered significant injuries and illnesses, and must be recorded at the initial diagnosis even if medical treatment or work restrictions are not recommended, or are postponed, in a particular case.

Table 5 [Table not included. See ED. NOTE.]

(a) You must record an injury or illness that results in death by entering a check mark on the OSHA 300 Log in the space for cases resulting in death. You must also report any work-related fatality to OR-OSHA within 8 hours.

(b) When an injury or illness involves one or more days away from work, you must record the injury or illness on the OSHA 300 Log with a check mark in the space for cases involving days away and an entry of the number of calendar days away from work in the number of days column. If the employee is out for an extended period of time, you must enter an estimate of the days that the employee will be away, and update the day count when the actual number of days is known.

(A) Begin counting days away on the day after the injury occurred or the illness began.

(B) End the count of days away from work on the date the physician or other licensed health care professional recommends that the employee return to work. This applies regardless of whether the employee returns earlier or later than recommended. If there is no recommendation from the physician or licensed health care professional, enter the actual number of days the employee is off work.

(C) You must count the number of calendar days the employee was unable to work as a result of the injury or illness, regardless of whether or not the employee was scheduled to work on those day(s). Include weekend days, holidays, vacation days or other days off in the total number of days recorded if the employee would not have been able to work on those days because of a work-related injury or illness.

(D) You may stop tracking of the number of calendar days away from work once the total reaches 180 days away from work and/or days of job transfer or restriction. Entering 180 in the total days away column is adequate.

(E) If the employee leaves your company for a reason unrelated to the injury or illness, such as retirement, a plant closing, or to take another job, you may stop counting days away from work or days of restriction/job transfer. If the employee leaves your company because of the injury or illness, you must estimate the total number of days away or days of restriction/job transfer and enter the day count on the 300 Log.

(F) You must enter the number of calendar days away for the injury or illness on the OSHA 300 Log that you prepare for the year in which the incident occurred. If the time off extends into a new year, estimate the number of days for that year and add that amount to the days from the year of occurrence. Do not split the days between years and enter amounts on the logs for two different years. Use this number to calculate the total for the annual summary, and then update the initial log entry later when the day count is known or reaches the 180-day cap.

(c) When an injury or illness involves restricted work or job transfer but does not involve death or days away from work, you must record the injury or illness on the OSHA 300 Log by placing a check mark in the space for job transfer or restriction and an entry of the number of restricted or transferred days in the restricted workdays column.

(A) Restricted work occurs when, as the result of a work-related injury or illness:

(i) You keep the employee from performing one or more of the routine functions of their job, or from working the full day that they would otherwise work; or

(ii) A physician or other licensed health care professional recommends that the employee not perform one or more of the routine functions of their job, or not work the full workday that they would otherwise work.

NOTE: For recordkeeping purposes, an employee’s routine functions are those work activities the employee regularly performs at least once per week.

(iii) A recommended work restriction is recordable only if it affects one or more of the employee’s routine job functions. To determine whether this is the case, you must evaluate the restriction in light of the routine functions of the injured or ill employee’s job.

(iv) A partial day of work is recorded as a day of job transfer or restriction for recordkeeping purposes, except for the day on which the injury occurred or the illness began.

(v) Record job transfer and restricted work cases in the same box on the OSHA 300 Log.

(vi) You count days of job transfer or restriction in the same way you count days away from work. The only difference is that, if you permanently assign the injured or ill employee to a job modified or permanently changed to eliminate the routine functions the employee was restricted from performing, you may stop the day count when the modification or change is permanent. You must count at least 1-day of restricted work or job transfer for such cases.

(d) If a work-related injury or illness results in medical treatment beyond first aid, you must record it on the OSHA 300 Log. If the employee received medical treatment but remained at work without transfer or restriction and the injury or illness did not involve death, one or more days away from work, one or more days of restricted work, or one or more days of job transfer, you enter a check mark in the box for other recordable cases.

NOTE: You must record the case even if the injured or ill employee does not follow the physician or other licensed health care professional’s recommendation.

(A) “Medical treatment” is the management and care of a patient to combat disease or disorder. For this rule, medical treatment does not include:

(i) Visits to a physician or other licensed health care professional solely for observation or counseling;

(ii) The conduct of diagnostic procedures, such as x-rays and blood tests, including the administration of prescription medications solely for diagnostic purposes (e.g., eye drops to dilate pupils); or

(iii) “First aid” as in (B) below.

(B) First aid is: Table 6 [Table not included. See ED. NOTE.]

(e) You must record a work-related injury or illness if the worker becomes unconscious, regardless of the length of time they remain unconscious.

(f) Work-related cases involving cancer, chronic irreversible disease, a fractured or cracked bone, or a punctured eardrum must always be recorded under the general criteria at the time of occurrence.

(9) Needlestick and Sharps Injury Recording Criteria.

(a) When an injury is diagnosed later as an infectious bloodborne disease, you must update the classification on the 300 log to reflect the new status or classification.

(b) You must record all work-related needlestick injuries and cuts from sharp objects contaminated with another person’s blood or other potentially infectious material (as defined by OAR 437-002-1910.1030). You must enter the case on the OSHA 300 Log as an injury. To protect the employee’s privacy, do not enter the employee’s name on the OSHA 300 Log (see the requirements for privacy cases in 437-001-0700(14)(a) through (14)(i).

NOTE: If you have an exposure incident that is not a needlestick, you must still record it if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or diagnosis of a significant injury or illness, such as HIV, hepatitis B, or hepatitis C.

(10) Medical Removal Recording Criteria. If another OR-OSHA standard requires the medical removal of an employee, you must record the case on the OSHA 300 Log.

(a) You must enter each medical removal case on the OSHA 300 Log as either a case involving days away from work or a case involving restricted work activity, depending on how you decide to comply with the medical removal requirement. If the medical removal is the result of a chemical exposure, you must enter the case on the OSHA 300 Log by checking the “poisoning” column.

(b) If the case involves voluntary medical removal before reaching the medical removal levels required by an OR-OSHA standard, do not record the case on the OSHA 300 Log.

(11) Occupational Hearing Loss Recording Criteria.

(a) Hearing loss must be recorded on the OSHA 300 Log by checking the hearing loss column when:

(A) An annual audiogram reveals a Standard Threshold Shift (STS) in either or both ears; and

(B) The hearing level in the same ear is 25 dB above audiometric zero.

NOTE: For the ease of the reader the definitions for STS and audiometric zero are provided here. Standard Threshold Shift (STS) -- A change in hearing threshold relative to the baseline audiogram of an average of 10 dB or more in either ear. Audiometric Zero -- The lowest sound pressure level that the average, young adult with normal hearing can hear.

(b) In determining whether an STS has occurred, you may correct for the age of the employee. Use the appropriate table in Appendix A to determine the age adjustment. If the STS is 10 dB or more after the age correction, it still meets the criteria for recordability.

(c) If you retest the employee’s hearing within 30 days of the first test, and the retest does not confirm the recordable STS, you are not required to record the hearing loss case on the OSHA 300 Log. If the retest confirms the recordable STS, you must record the hearing loss case within 7 calendar days of the retest. If subsequent audiometric testing performed under the testing requirements of the noise standard (OAR 437-002-1910.95) indicates that an STS is not persistent, you may erase, delete, or line-out the recorded entry.

(d) If a physician or other licensed health care professional determines that the hearing loss is not work-related or has not been significantly aggravated by occupational noise exposure, the case is not work-related. Do not record it on the OSHA 300 Log.

(12) Tuberculosis Reporting Criteria. If any of your employees has an occupational exposure to anyone with a known case of active tuberculosis (TB), and that employee subsequently develops a tuberculosis infection, as evidenced by a positive skin test or diagnosis by a physician or other licensed health care professional, you must record the case on the OSHA 300 Log by checking the “respiratory condition” column.

(a) Do not record a pre-employment positive skin test because the exposure was not in your workplace.

(b) Line out or erase a recorded case if you prove that:

(A) the worker lives in a household with a person diagnosed with active TB;

(B) the Public Health Department identifies the worker as a contact of an individual with a case of active TB unrelated to the workplace; or

(C) a medical investigation shows that the employee’s infection was caused by exposure to TB away from work, or proves that the case was not related to the workplace TB exposure.

(13) Removed.

(14) Forms.

(a) You must use OSHA 300, 300-A, and DCBS Form 801 or equivalent forms, for recordable injuries and illnesses. The OSHA 300 form is the Log of Work-Related Injuries and Illnesses, the 300-A is the Summary of Work-Related Injuries and Illnesses, and the DCBS Form 801 or equivalent is the Worker’s and Employer’s Report of Occupational Injury or Disease.

(A) Even if you are exempt from recordkeeping, you must have at each establishment, a copy of DCBS Form 801 or equivalent for each occupational injury or illness that may result in a compensable claim.

(B) You must enter information about your business at the top of the OSHA 300 Log, enter a one or two line description for each recordable injury or illness, and summarize this information on the OSHA 300-A at the end of the year.

(C) You must complete a DCBS Form 801 or equivalent form, for each recordable injury or illness entered on the OSHA 300 Log.

(D) You must enter each recordable injury or illness on the OSHA 300 Log and DCBS Form 801 or equivalent within 7 calendar days of receiving information that a recordable injury or illness has occurred.

(E) An equivalent form is one that has the same information, is as readable and understandable, and is completed using the same instructions as the OSHA form it replaces. Many employers use an insurance form instead of the DCBS Form 801, or supplement an insurance form by adding any additional information required by OSHA.

(F) Use a computer to keep your records if it can produce equivalent forms when needed.

(G) If you have a “privacy concern case,” do not enter the employee’s name on the OSHA 300 Log. Instead, enter “privacy case” in the space normally used for the employee’s name. This will protect the privacy of the injured or ill employee when another employee, a former employee, or an authorized employee representative has access to the OSHA 300 Log. You must keep a separate, confidential list of the case numbers and employee names for your privacy concern cases so you can update the cases and provide the information to the government if asked to do so.

(H) The following injuries or illnesses are privacy concern cases:

(i) An injury or illness to an intimate body part or the reproductive system;

(ii) An injury or illness resulting from a sexual assault;

(iii) Mental illnesses;

(iv) HIV infection, hepatitis, or tuberculosis;

(v) Needlestick injuries and cuts from sharp objects contaminated with another person’s blood or other potentially infectious material; and

(vi) Other illnesses, if the employee voluntarily requests that his or her name not be entered on the log.

NOTE: This is a complete list of all injuries and illnesses that are privacy concern cases.

(I) If you reasonably believe that information describing the privacy concern case may be personally identifiable even though the employee’s name is omitted, use discretion in describing the injury or illness on both the OSHA 300 and DCBS 801 Forms. You must enter enough information to identify the cause of the incident and the general severity of the injury or illness, but you do not need to include details of an intimate or private nature. For example, describe a sexual assault case as “injury from assault,” or an injury to a reproductive organ could be described as “lower abdominal injury.”

(J) If you voluntarily disclose the forms to persons other than government representatives, employees, former employees or authorized representatives, you must remove or hide the employees’ names and other personally identifying information, except for the following cases:

(i) To an auditor or consultant hired by the employer to evaluate the safety and health program;

(ii) To the extent necessary for processing a claim for workers’ compensation or other insurance benefits; or

(iii) To a public health authority or law enforcement agency for uses and disclosures for which consent, an authorization, or opportunity to agree or object is not required under Department of Health and Human Services Standards for Privacy of Individually Identifiable Health Information, 45 CFR.164.512.

(b) In addition, health care employers as defined in ORS 654.412 must record assaults against employees on the Health Care Assault Log. See OAR 437-001-0706.

(15) Multiple Business Establishments. You must keep a separate OSHA 300 Log for each establishment that you expect to operate for 1-year or longer.

(a) You may keep one OSHA 300 Log that covers all of your short-term establishments. You may also include the short-term establishments’ recordable injuries and illnesses on an OSHA 300 Log that covers short-term establishments for individual company divisions or geographic regions.

(b) You may keep the records for an establishment at your headquarters or other central location if you can:

(A) transmit information about the injuries and illnesses from the establishment to the central location within 7 calendar days of receiving information that a recordable injury or illness has occurred; and

(B) produce and send the records from the central location to the establishment within the time frames required by OAR 437-001-0700(20) and 437-001-0700(22) when you are required to provide records to a government representative, employees, former employees or employee representatives.

(c) You must link each employee with one of your establishments, for recordkeeping purposes. You must record the injury and illness on the OSHA 300 Log of the injured or ill employee’s establishment, or on an OSHA 300 Log that covers that employee’s short-term establishment.

(d) If the injury or illness occurs at one of your establishments, you must record the injury or illness on the OSHA 300 Log of the establishment where the injury or illness occurred. If the employee is injured or becomes ill and is not at one of your establishments, you must record the case on the OSHA 300 Log at the establishment where the employee normally works.

(16) Covered Employees. You must record on the OSHA 300 Log the recordable injuries and illnesses of all employees on your payroll, whether they are labor, executive, hourly, salary, part-time, seasonal, or migrant workers. You also must record the recordable injuries and illnesses that occur to employees who are not on your payroll if you supervise these employees on a day-to-day basis. If your business is organized as a sole proprietor- ship or partnership, the owner or partners are not considered employees for recordkeeping purposes.

(a) Record the injuries and illnesses to workers from temporary help agencies or employee leasing services only if you supervise these employees on a day-to-day basis.

(b) If a contractor’s employee is under the day-to-day supervision of the contractor, the contractor is responsible for recording the injury or illness. If you supervise the contractor employee’s work on a day-to-day basis, you must record the injury or illness.

(c) You and the temporary help service, employee leasing service, personnel supply service, or contractor should coordinate your efforts to make sure that each injury and illness is recorded only once: either on your OSHA 300 Log (if you provide day-to-day supervision) or on the other employer’s OSHA 300 Log (if that company provides day-to-day supervision).

(17) Annual Summary and Posting Requirements. At the end of each calendar year, you must:

(a) Review the OSHA 300 Log to verify that the entries are complete and accurate, and correct any problems;

(b) Use the OSHA 300A or equivalent form to create an annual summary of injuries and illnesses from the OSHA 300 Log;

(c) Certify that one of the following examined the OSHA 300 log and believe, based on knowledge of the process by which the information was recorded, that it is correct and complete.

(A) The highest ranking manager at the location where the log is compiled.

(B) If there is no management at the compiling location, any manager with jurisdiction over that location.

(d) You must post a copy of the annual summary in each establishment in a conspicuous place or places where notices to employees are customarily posted. You must ensure that the posted annual summary is not altered, defaced or covered by other material.

(e) You must post the summary no later than February 1 of the year following the year covered by the records and keep it posted until April 30.

(18) Paperwork Retention and Updating. You must save the OSHA 300 Log, the privacy case list (if any), the annual summary, and the DCBS Form 801 or equivalent forms for 5 years following the end of the calendar year that they cover.

(a) During the storage period, you must update your stored OSHA 300 Logs to include newly discovered recordable injuries or illnesses and to show any changes that have occurred in the classification of previously recorded injuries and illnesses. If the description or outcome of a case changes, you must remove or line out the original entry and enter the new information.

NOTE: For more information on retention of medical and exposure records, see OAR 437-002-1910.1020.

(19) Change of Business Ownership. If your business changes ownership, you must record and report work-related injuries and illnesses only for the time you owned the establishment. You must transfer the records to the new owner. The new owner must save all records of the establishment kept by the prior owner, but need not update or correct the records of the prior owner.

(20) Employee Involvement. You must involve your employees and their representatives in the recordkeeping system.

(a) Inform each employee of how they are to report an injury or illness to you.

(b)(A) Provide limited access to your injury and illness records for your employees and their representatives.

(B)(i) Your employees, former employees, their personal representatives, and their authorized collective bargaining representatives have the right to access the OSHA injury and illness records, with some limitations, as below.

(ii) A personal representative is anybody designated in writing by the employee or former employee. It also is the legal representative of a deceased or legally incapacitated employee.

(c)(A) When an employee, former employee, personal representative, or authorized employee representative asks for copies of your current or stored OSHA 300 Log(s) for an establishment the employee or former employee has worked in, you must give the requester a copy of the relevant OSHA 300 Log(s) by the end of the next business day.

(B) You must leave the names on the 300 Log. However, to protect the privacy of injured and ill employees, do not record the employee’s name on the OSHA 300 Log for certain “privacy concern cases.”

(d) When an employee, former employee, or personal representative asks for a copy of the DCBS Form 801 or equivalent describing an injury or illness to that employee or former employee, you must give the requester a copy of the DCBS Form 801 or equivalent containing that information by the end of the next business day.

(e) When an authorized employee representative asks for copies of the DCBS Form 801 or equivalent for an establishment where the agent represents employees under a collective bargaining agreement, you must give copies of those forms to the authorized employee representative within 7 calendar days. You are only required to give the authorized employee representative information from the releasable part of the DCBS Form 801 or equivalent section titled “Tell us about the case” or a similar section. You must remove all other information from the copy of the DCBS Form 801 or equivalent form that you give to the authorized employee representative.

(f) You may not charge for these copies the first time. However, if one of the designated persons asks for additional copies, you may assess a reasonable charge for retrieving and copying the records.

(21) Reporting Fatalities and Hospitalizations to Oregon OSHA. You must report the following to Oregon OSHA at 1-800-922-2689 or 503-378-3272 within the given time limits:

(a) Fatalities — 8 hours after occurrence or employer knowledge. You must report a fatality caused by a heart attack at work. You must report a fatality resulting from motor vehicle accidents that happen during the employees work shift. The local OR-OSHA field office safety or health manager will decide whether to investigate the incident, depending on the circumstances of the heart attack or motor vehicle accident. Report a fatality only if it occurs within 30 days of the accident.

(b) Catastrophe — 8 hours after occurrence or employer knowledge. For the ease of the reader the Definition for Catastrophe is – An accident in which two or more employees are fatally injured, or three or more employees are admitted to a hospital or an equivalent medical facility.

(c) Overnight Hospitalization — 24 hours after occurrence or employer knowledge of one or more employees. Overnight hospitalization is for medical treatment only. Hospitalization for observation is not reportable, nor is emergency room treatment. You must report injuries related to a heart attack or motor vehicle accident as well as other work related injuries. Report overnight hospitalizations to the nearest Oregon OSHA field office (Portland, Salem, Bend, Eugene or Medford).

NOTE: Oregon OSHA Field Office locations, telephone and Fax numbers are: Table — addresses [Table not included. See ED. NOTE.]

(d) Effective date. The effective date for reporting of a fatality resulting from motor vehicle accidents that happen during the employees work shift is January 1, 2007.

(22)(a) Providing Records to Government Representatives. When an authorized government representative asks for the records you keep in compliance with this standard, you must provide copies of the records within 4 business hours.

(b) Authorized government representatives are:

(A) a representative of the Oregon Department of Consumer and Business Services.

(B) a representative of the Secretary of Labor conducting an inspection or investigation under the Act.

(C) a representative of the Secretary of Health and Human Services (including the National Institute for Occupational Safety and Health — NIOSH) conducting an investigation under Section 20(b) of the Act.

(23) Requests from the Bureau of Labor Statistics or DCBS. If you receive a Survey of Occupational Injuries and Illnesses Form from the Bureau of Labor Statistics (BLS), or a BLS designee, or a request for data from the Oregon Department of Consumer and Business Services, you must promptly complete the form and return it following the instructions on the survey form.

(24) Prohibition against discrimination. Oregon Revised Statute 654.062(5) prohibits discrimination against an employee for reporting a work-related fatality, injury or illness. It also protects the employee who files a safety and health complaint, asks for access to this rule, records, or otherwise exercises any rights afforded by law or rule.

[ED. NOTE: Forms, Graphics & Tables referenced are available from the agency.]

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 7-1979, f. 8-20-79, ef. 9-1-79; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 11-2001, f. 9-14-01, cert. ef. 1-1-02; OSHA 2-2002, f. & cert. ef. 3-12-02; OSHA 7-2002, f. & cert. ef. 11-15-02; OSHA 6-2003, f. & cert. ef. 11-26-03; OSHA 7-2006, f. & cert. ef. 9-6-06; OSHA 11-2007, f. 12-21-07, cert. ef. 1-1-08; OSHA 8-2008, f. & cert. ef. 7-14-08

437-001-0706

Recordkeeping for Health Care Assaults

NOTE: For further information, instructions, and resources, visit Oregon OSHA’s healthcare workplace violence assault log web page at:

www.cbs.state.or.us/osha/subjects/health_care_assault_log.html.

(1) Purpose. This rule implements the amendments to the Oregon State Employment Act, ORS 654.412 through 654.423, providing specific provisions for the recordkeeping and reporting requirements of health care assaults, and additional recordkeeping requirements as authorized under ORS 654.025(2) and 656.726(4)(a).

NOTE: For the ease of the reader, ORS 654.412 through 654.423 is reprinted as Appendix B to OAR 437-001-0706.

(2) Scope and Definitions. This rule applies to health care employers and home health care services provided by health care employers. Health care employers only include hospitals and ambulatory surgical centers, which are defined in ORS 442.015: "Hospital" means a facility with an organized medical staff, with permanent facilities that include inpatient beds and with medical services, including physician services and continuous nursing services under the supervision of registered nurses, to provide diagnosis and medical or surgical treatment primarily for but not limited to acutely ill patients and accident victims, to provide treatment for the mentally ill or to provide treatment in special inpatient care facilities. "Ambulatory surgical center" means a facility that performs outpatient surgery not routinely or customarily performed in a physician's or dentist's office, and is able to meet health facility licensure requirements.

(3) Health care assault recordkeeping. In addition to existing general recordkeeping requirements in OAR 437-001-0700, Recordkeeping and Reporting, health care employers must use the Health Care Assault Log, or equivalent, to record assaults.

See ORS 654.412 through 654.423 for details required to be recorded. Appendix A of 437-001-0706 provides instructions for completing the form.

NOTE: If the incident results in an overnight hospitalization, a catastrophe, or fatality, it must be immediately reported to Oregon OSHA. Record recordable injuries, illnesses, fatalities on the OSHA 300 Log. See OAR 437-001-0700.

(4) Other recordkeeping information. The following sections of OAR 437-001-0700 apply to health care assault recordkeeping and reporting:

Section (6) Work-relatedness

Section (14)(b) Forms

Section (15) Multiple Business Establishments

Section (16) Covered Employees

Section (19) Change of Business Ownership

[ED. NOTE: Appendices referenced are not included in rule text. Click here for PDF copy of appendicies.]

Stat. Auth.: ORS 654.025(2) & 656.726(4).
Stats. Implemented: ORS 654.412 - 654.423
Hist.: OSHA 11-2007, f. 12-21-07, cert. ef. 1-1-08; OSHA 8-2008, f. & cert. ef. 7-14-08; OSHA 2-2011, f. 9-29-11, cert. ef. 10-1-11

437-001-0740

Falsification or Failure to Keep and Post Records or Make Reports

Oregon OSHA will cite employers who fail to keep the records, post the summaries or make the reports required by OAR 437-001-0700 (except 437-001-0700(21) which is addressed in 437-001-0170) or 437-001-0706. Citations will be 'other than serious' and carry a penalty of at least $100 but not more than $1000 for each violation.

NOTE: ORS 654.991(3) provides that anybody who knowingly makes a false statement, represen- tation or certification in any application, record, report, plan or other document filed or required by ORS 654.001 to 654.295, will, on conviction, be fined not more than $10,000 or be imprisoned for not more than 6 months, or both. Also, ORS 654.086(1)(e) provides for civil penalties for falsification of a document.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 6-1994, f. & cert. ef. 9-30-94; OSHA 11-2001, f. 9-14-01, cert. ef. 1-1-02; OSHA 7-2002, f. & cert. ef. 11-15-02; OSHA 11-2007, f. 12-21-07, cert. ef. 1-1-08

437-001-0742

Recordkeeping Variances and Exceptions

In order to achieve a uniform national system for the recordkeeping and reporting of occupational injuries and illnesses, the State of Oregon and the U.S. Department of Labor have agreed that as applied to employers, defined in subsections 3(5) of the Occupational Safety and Health Act of 1970 (Public Law 91-596, 81 STAT 1950), the state will not grant any variances or exceptions to the recordkeeping and reporting regulations of this part without prior approval of the U.S. Bureau of Labor Statistics.

[Publications: Publications referenced are available from the agency.]
Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.120(2) & ORS 654.120(5)
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 11-2001, f. 9-14-01, cert. ef. 1-1-02

437-001-0760

Rules for All Workplaces

(1) Employers’ Responsibilities.

(a) The employer must see that workers are properly instructed and supervised in the safe operation of any machinery, tools, equipment, process, or practice that they are authorized to use or apply. This rule does not require a supervisor on every part of an operation nor prohibit workers from working alone.

(b) The employer must take all reasonable means to require employees:

(A) To work and act in a safe and healthful manner;

(B) To conduct their work in compliance with all applicable safety and health rules;

(C) To use all means and methods, including but not limited to, ladders, scaffolds, guardrails, machine guards, safety belts and lifelines, that are necessary to safely accomplish all work where employees are exposed to a hazard; and

(D) Not to remove, displace, damage, destroy or carry off any safety device, guard, notice or warning provided for use in any employment or place of employment while such use is required by applicable safety and health rules.

(c) Every employer is responsible for providing the health hazard control measures necessary to protect the employees’ health from harmful or hazardous conditions and for maintaining such control measures in good working order and in use.

(d) Every employer must inform the employees regarding the known health hazards to which they are exposed, the measures which have been taken for the prevention and control of such hazards, and the proper methods for utilizing such control measures.

(e) Every agent of the employer is responsible for:

(A) The safe performance of the work under the agent’s supervision or control;

(B) The safe conduct of all employees under the agent’s supervision or control;

(C) The safety of all employees working under the agent’s supervision or control.

(2) Employees’ Responsibilities.

(a) Employees must conduct their work in compliance with the safety rules contained in this code.

(b) All injuries must be reported immediately to the person in charge or other responsible representative of the employer.

(c) It is the duty of all workers to make full use of safeguards provided for their protection. It is the worker’s responsibility to abide by and perform the following requirements:

(A) A worker must not operate a machine unless guard or method of guarding is in good condition, working order, in place, and operative.

(B) A worker must stop the machine or moving parts and properly tagout or lockout the starting control before oiling, adjusting, or repairing, except when such machine is provided with means of oiling or adjusting that will prevent possibility of hazardous contact with moving parts.

(C) A worker must not remove guards or render methods of guarding inoperative except for the purpose of adjustment, oiling, repair, or the setting up a new job.

(D) Workers must report to their supervisor any guard or method of guarding that is not properly adjusted or not accomplishing its intended function.

(E) Workers must not use their hands or any portion of their bodies to reach between moving parts or to remove jams, hangups, etc. (Use hook, stick, tong, jig or other accessory.)

(F) Workers must not work under objects being supported that could accidentally fall (such as loads supported by jacks, the raised body of a dump truck, etc.) until such objects are properly blocked or shored.

(G) Workers must not use defective tools or equipment. No tool or piece of equipment should be used for any purpose for which it is not suited, and none should be abused by straining beyond its safe working load.

(d) Workers must not remove, deface, or destroy any warning, danger sign, or barricade, or interfere with any other form of accident prevention device or practice provided which they are using, or which is being used by any other worker.

(e) Workers must not work underneath or over others exposed to a hazard thereby without first notifying them and seeing that proper safeguards or precautions have been taken.

(f) Workers must not work in unprotected, exposed, hazardous areas under floor openings.

(g) Long or unwieldy articles must not be carried or moved unless adequate means of guarding or guiding are provided to prevent injury.

(h) Hazardous conditions or practices observed at any time must be reported as soon as practicable to the person in charge or some other responsible representative of the employer.

(i) Workers observed working in a manner which might cause immediate injury to either themselves or other workers must be warned of the danger.

(j) Before leaving a job, workers must correct, or arrange to give warning of, any condition which might result in injury to others unfamiliar with existing conditions.

(3) Investigations of Injuries.

(a) Each employer must investigate or cause to be investigated every lost time injury that workers suffer in connection with their employment, to determine the means that should be taken to prevent recurrence. The employer must promptly install any safeguard or take any corrective measure indicated or found advisable.

(b) At the request of authorized Department representatives, it is the duty of employers, their superintendents, supervisors and employees to furnish all pertinent evidence and names of known witnesses to an accident and to give general assistance in producing complete information which might be used in preventing a recurrence of such accident.

At the request of the Department, persons having direct authority must preserve and mark for identification, materials, tools or equipment necessary to the proper investigation of an accident.

(4) Intoxicating Liquor and Drugs. The use of intoxicating liquor on the job is strictly prohibited. Anyone whose ability to work safely is impaired by alcohol, drugs, or medication must not be allowed on the job while in that condition.

(5) Horseplay. There must be no horseplay, scuffling, practical jokes, or any other activity of a similar nature.

(6) Extraordinary Hazards. When conditions arise that cause unusual or extraordinary hazards to workers, additional means and precautions shall be taken to protect workers or to control hazardous exposure. If the operation cannot be made reasonably safe, regular work must be discontinued while such abnormal conditions exist, or until adequate safety of workers is ensured.

(7) Inspections.

(a) All places of employment must be inspected by a qualified person or persons as often as the type of operation or the character of the equipment requires. Defective equipment or unsafe conditions found by these inspections must be replaced or repaired or remedied promptly.

(b) Wherever required in this safety code, a written and dated report, signed by the person or persons making the inspection, must be kept.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 1-1967, f. 1-12-67, ef. 1-15-67; WCB 3-1997, f. 10-6-75, cert. ef. 11-1-75; WCD 11-1976, f. & ef. 5-5-76; WCB 15-1976, f. 7-6-76, cert. ef. 8-1-76; WCD 10-1982, f. & ef. 7-30-82; OSHA 6-1994, f. & cert. ef. 9-30-94, Renum?bered from 437-040-0020, 437-040-0025, 437-040-0030, 437-040-0035, 437-040-0040, 437-040-0050, 437-040-0055 & 437-137-0010(1) & (2); OSHA 2-2009, f. 1-27-09, cert. ef. 2-3-09; OHSA 2-2012, f. 5-11-12, cert. ef. 7-1-12

437-001-0765

Safety Committees and Safety Meetings.

This rule requires employers to establish and administer a safety committee, or hold safety meetings, to communicate and evaluate safety and health issues. Purpose: The purpose of safety committees and safety meetings is to bring workers and management together in a non-adversarial, cooperative effort to promote safety and health. Safety committees and safety meetings will assist you in making continuous improvement to your safety and health programs. Scope: This rule applies to public or private employers in Oregon subject to Oregon OSHA jurisdiction, except as listed below.

You do not have to comply with this rule if you are:

The sole owner and only employee of a corporation;

A member of a board or commission and do not participate in the day-to-day activities of the company. You are not considered an employee for purposes of this rule.

Engaged in agricultural activities covered by Division 4, Subdivision C.

Engaged in forest activities covered by Division 7, Subdivisions B and C.

Division 2, Subdivision L OAR 437-002-0182(7) requires employers engaged in fire service activities to establish a separate fire service safety committee or opt for safety meetings if they meet the criteria in the following table.

You can choose a committee or meetings.

(1) You must establish and administer an effective safety committee or hold effective safety meetings as defined by these rules:

Table [Table not included. See ED. NOTE.]

Safety Committees

(2) If you have 20 or fewer employees you must have at least 2 members. If you have more than 20 employees you must have at least 4 members.

(3) You must have an equal number of employer-selected members and employee-elected or volunteer members. If both parties agree, the committee may have more employee-elected or volunteer members.

NOTE: Management can select a supervisor to represent them. Employees can elect a supervisor to represent them.

(4) Your safety committee members must:

Have a majority agree on a chairperson.

Serve a minimum of one year, when possible.

Be compensated at their regular rate of pay.

Have training in the principles of accident and incident investigations for use in evaluating those events.

Have training in hazard identification.

Be provided with meeting minutes.

Represent major activities of your business.

(5) Your safety committee must meet on company time as follows:

Quarterly in situations where employees do mostly office work.

Monthly for all other situations (except the months when quarterly worksite inspections are performed).

(6) You must keep written records of each safety committee meeting for three years that include:

Names of attendees.

Meeting date.

All safety and health issues discussed, including tools, equipment, work environment, and work practice hazards.

Recommendations for corrective action and a reasonable date by which management agrees to respond.

Person responsible for follow up on any recommended corrective actions.

All reports, evaluations and recommendations made by the committee.

(7) Your safety committee must establish procedures for conducting workplace safety and health inspections. Persons trained in hazard identification must conduct inspections as follows:

Table [Table not included. See ED. NOTE.]

(8) In addition to the above requirements, your safety committee must:

Work with management to establish, amend or adopt accident investigation procedures that will identify and correct hazards.

Have a system that allows employees an opportunity to report hazards and safety and health related suggestions.

Establish procedures for reviewing inspection reports and for making recommendations to management.

Evaluate all accident and incident investigations and make recommendations for ways to prevent similar events from occurring.

Make safety committee meeting minutes available for all employees to review.

Evaluate management’s accountability system for safety and health, and recommend improvements. Examples include use of incentives, discipline, and evaluating success in controlling safety and health hazards.

(9) If you have multiple locations, you may choose to have a centralized safety committee. A centralized safety committee must represent the safety and health concerns of all locations and meet the requirements for safety committees. If you rely on a centralized committee, you must also have a written safety and health policy that:

Represents management commitment to the committee.

Requires and describes effective employee involvement.

Describes how the company will hold employees and managers accountable for safety and health.

Explains specific methods for identifying and correcting safety and health hazards at each location.

Includes an annual written comprehensive review of the committees’ activities to determine effectiveness.

NOTE: Two or more employers at a single location may combine resources to meet the intent of these rules.

Safety Meetings

(10) Safety meetings must:

Include all available employees.

Include at least one employer representative authorized to ensure correction of safety and health issues.

Be held on company time and attendees paid at their regular rate of pay.

(11) Hold safety meetings with the following frequency if:

Table [Table not included. See ED. NOTE.]

(12) Safety meetings must include discussions of:

Safety and health issues.

Accident investigations, causes, and the suggested corrective measures.

(13) Employers in construction, utility work and manufacturing must document, make available to all employees, and keep for three years a written record of each meeting that includes the following:

Hazards related to tools, equipment, work environment and unsafe work practices identified and discussed during the meeting.

The date of the meeting.

The names of those attending the meeting.

All other employers do not need to keep these records if all employees attend the safety meeting.

(14) If you are a subcontractor on a multi-employer worksite, to meet the intent of (11) through (13), your employees may attend the prime contractor’s safety meetings. You may keep the minutes from these meetings as a part of your records to meet the intent of (13). If you choose this option, you must still meet to discuss accidents involving your employees.

(15) Innovation. After you apply, OR-OSHA may grant approval for safety committees or safety meetings that differ from the rule requirements yet meet the intent of these rules.

(16) Effective Dates. The effective date for compliance with this rule is January 1, 2009. For employers with 10 or fewer employees, other than those in construction, the effective date is September 19, 2009.

[ED. NOTE: Tables referenced are available from the agency.]

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.176
Hist.: WCD 10-1982, f. & ef. 7-30-82; OSHA 12-1990(Temp), f. & cert. ef. 6-18-90; OSHA 28-1990, f. 12-18-90, cert. ef. 3-1-91; OSHA 6-1994, f. & cert. ef. 9-30-94, Renumbered from 437-040-0044, 437-040-0045, 437-040-0046, 437-040-0047, 437-040-0048 & 437-040-0049; OSHA 10-1995, f. & cert. ef. 11-29-95; OSHA 8-2001, f. & cert. ef. 7-13-01; OSHA 6-2003, f. & cert. ef. 11-26-03; OSHA 7-2006, f. & cert. ef. 9-6-06; OSHA 9-2008, f. 9-19-08, cert. ef. 1-1-09

Occupational Safety and Health Grant Program

437-001-0800

Application Procedures

(1) The Division may solicit applications for Occupational Safety and Health Grants to develop innovative, proactive occupational safety and health training, educational programs or materials.

(2) Any labor consortium, employer consortium, educational institution that is affiliated with a labor organization or employer group, or other nonprofit entity, may apply for an Occupational Safety and Health Grant as provided in ORS 654.189 and 654.191, and in accordance with OAR 437-001-0800 through 437-001-0810.

(3) An applicant for a grant shall submit the grant application during the period of time specified in the application procedure. An application shall be in writing on the application forms and procedures provided by the Division and shall contain at a minimum:

(a) The name, address and telephone number of each applicant;

(b) The name address and telephone number of the project director;

(c) The amount of the request;

(d) An impact statement including the type and number of employees or employers targeted; the problem to be addressed, and the impact the project will have on occupational safety and health in Oregon;

(e) A description of the manner in which the grant will be used, including:

(A) Anticipated financial expenditures;

(B) A developmental plan that states goals and how they will be accomplished;

(C) Proposed completion date;

(D) Proposed in-kind services;

(E) Targeted audience; and

(F) Intended measurement of results; and

(f) Any other information included in the application forms and procedures.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: OSHA 3-1989, f. & cert. ef. 12-1-89

437-001-0805

Application Review

(1) The Division shall review all applications and request any additional information needed to assure applications are relevant and complete.

(2) After an application is determined to be complete and in compliance with the intended goals of the program by the Division, it shall be forwarded to the Safe Employment Education and Training Advisory Committee (SEETAC) for review and possible recommendation for grant approval.

(3) In reviewing grant applications for possible recommendations for approval to the Director, the committee shall consider at least the following elements:

(a) The amount of available funds in the Occupational Safety and Health Grant account;

(b) The impact statement details;

(c) The innovativeness of the grant request;

(d) The feasibility of the developmental plan;

(e) The amount of in-kind services;

(f) The stability of other funding sources; and

(g) The administrative costs and/or responsibilities imposed on the Division in connection with the grant project.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: OSHA 3-1989, f. & cert. ef. 12-1-89

437-001-0810

Grant Awards

(1) The Division shall notify applicants, in writing, of the approval or disapproval of the grant request.

(2) The applicant shall execute documents required by the Division for evidence of the type and amount of grant given, performance criteria and reporting requirements, and any other terms and conditions agreed to in connection with the awarding of a grant.

(3) Grant recipients shall make available to the Division all records and materials necessary to monitor the grant award.

(4) If the terms and conditions under which the grant was approved are not met, the Division may, upon written notice, take one or more of the following actions:

(a) Immediately revoke approval of the use of Occupational Safety and Health Grant funds; or

(b) Require repayment of all or a portion of any funds advanced; or

(c) Any other appropriate legal action necessary.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: OSHA 3-1989, f. & cert. ef. 12-1-89

437-001-0830

Authority for Rules

The Director has adopted OAR 437-001-0830 through 437-001-0895 under authority of ORS 656.622(9) and ORS 656.726(3).

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0835

Purpose of Rules

These rules explain what assistance is available from the Worksite Redesign Program, who is qualified and how to receive assistance. The department may solicit applications for worksite redesign grants and product grants in order to prevent the recurrence of on-the-job injuries and illnesses.

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0840

Applicability of Rules

These rules apply to all requests for Worksite Redesign Program assistance received by the department on or after the effective date of these rules. Worksite Redesign Program assistance shall only be provided in Oregon.

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0845

Definitions

(1) "Applicant" means the employer, employer group, employee group, educational association or educational institution which applies for a grant. An employer group or employee group may be created for the sole purpose of applying for and administering a worksite redesign grant.

(2) "Committee" means the Application Review Committee. Committee members are appointed by the director. The Committee recommends approval or disapproval of worksite redesign grants to the director.

(3) "Employer" means an Oregon employer within the meaning of the Workers' Compensation Law.

(4) "Fund" means the Workers' Benefit Fund.

(5) "Grant Agreement" means the contract between the department and the grantee following department approval of the application for a worksite redesign grant.

(6) "Grant product" means the workplace solution developed from an approved grant agreement to minimize workplace hazards.

(7) "OR-OSHA" means the OREGON OCCUPATIONAL SAFETY AND HEALTH DIVISION.

(8) "Product grant" means the amount of funding awarded an employer for the purchase of a grant product.

(9) "Worksite redesign grant" means a grant for the purpose of performing research and analysis of a workplace problem, and/or development of a solution to a workplace problem in order to prevent or reduce the incidence of on-the-job injuries and illnesses.

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0850

Administration of Rules

(1) All payments under the Worksite Redesign Program are subject to the availability of funds. The director has final authority to approve/disapprove requests for assistance and to determine how the funds will be disbursed.

(2) In addition to approving worksite redesign grants, the director may use the Fund for educational activities to provide information about and encourage application for grants for prevention or reduction of on-the-job injuries and illnesses.

(3) Pursuant to ORS 656.622, decisions by the director regarding Worksite Redesign Program assistance may not be reviewed by any court or other administrative body.

(4) The following conditions apply to all ideas, concepts, know-how, techniques, processes, methods, inventions, discoveries, developments, innovations and improvements conceived or made by a grantee, a grantee's employees or a grantee's contractors resulting from work under a worksite redesign grant:

(a) Public use of a new product design. All inventions and copyrightable works arising from work conducted under a worksite redesign grant will be dedicated to the public domain without any limitation on their use by the public. Neither DCBS, nor the grant recipient nor the grantee's contractors will hold trade secrets as a result of work conducted under a worksite redesign grant.

(b) The grantee and its contractors will abandon any and all ideas, concepts, know-how, techniques, processes, methods, inventions, discoveries, developments, innovations and improvements ("inventions") conceived or made by the grantee, the grantee's employees, or the grantee's contractors, whether alone or with others, resulting from work under the grant. The grantee will disclose all such inventions to the department promptly and will provide all assistance reasonably requested by the department to document the abandonment of such Inventions and/or dedication of such Inventions to the public domain. There will be no restriction on the manufacture, use or sale of such inventions by the public.

(c) Published works produced by grantee must bear an acknowledgment of support through the use of the following comparable statement: "This material has been made possible by a grant from the Oregon Department of Consumer and Business Services."

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0855

Assistance Available under the Worksite Redesign Program

Assistance from the Fund will be in the form of grants. Grants will partially fund research and analysis of workplace problems, and/or development of solutions to workplace problems, and /or purchase of grant products. If readily available solutions to the problems have been identified by the applicant or are known to DCBS, the project will not be approved. However, if during the research phase of a funded project a previously unknown solution is found, the grant agreement may be amended to permit purchase and evaluation of the new-found solution.

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0860

Eligibility for Worksite Redesign Assistance

(1) As part of the application, the applicant must have documentation of the workplace problem such as accepted compensable claims, incident reports, OSHA 200 log entries, hazard evaluations, or statistical reports of injuries and illnesses for the industry and/or occupation for which the applicant seeks an ergonomic solution.

(2) An applicant must identify an employer as the research site and/or the recipient of the prototype design or grant product. That designated employer and those employers who apply for a product grant must meet the following eligibility conditions:

(a) The employer has and maintains Oregon workers' compensation insurance coverage as required by law;

(b) Business operations are ongoing and have continued for the three-year period prior to the date the applicant submits the application to the department;

(c) The employer demonstrates financial stability and solvency by providing for the three-year period prior to the date the applicant submits the application one of the following: a letter of evaluation by an independent certified public accounting firm; a letter of credit; tax records; audited profit and loss statements and balance sheets; or audited annual reports. For product grants of less than $10,000, the department may permit an employer to certify financial stability;

(d) The employer has no bankruptcy or receivership action and no judgments for non-payment of wages/debts within the one-year period prior to the date the department receives the application;

(e) At the time the applicant submits the application, the employer has no outstanding OR-OSHA citations at any of the employer's locations or sites with unabated/uncorrected safety or health hazards associated with the equipment or process that is the subject of the application; and

(f) The employer provides information about the employer's early-return-to-work program.

(3) Reasons for ending Worksite Redesign Program eligibility which apply to all applicants as defined in OAR 437-001-0845 include:

(a) Misrepresentation or omission of information by the applicant to obtain assistance;

(b) Failure of the applicant to provide requested information or to cooperate in the Worksite Redesign Program grant review process or in the development or implementation of an approved grant;

(c) The applicant is precluded from receiving Worksite Redesign Program assistance in accordance with OAR 437-001-0890.

(4) Reasons for ending Worksite Redesign Program eligibility which apply to employer applicants, employers designated in the grant application as the research site and/or the recipient of the prototype design and employers who are grant product recipients include:

(a) The employer does not maintain Oregon workers' compensation insurance coverage as required by law;

(b) The employer, after requesting Worksite Redesign Program assistance, becomes subject to bankruptcy or receivership action or incurs judgment for non-payment of wages/debts; or,

(c) The employer, after requesting Worksite Redesign Program assistance, is issued a citation by OR-OSHA resulting from a fatality investigation, accident investigation, a complaint investigation, or a referral from another agency, which is related to or associated with, the subject of the worksite redesign grant. The department will hold in abeyance any requests for Worksite Redesign Program assistance until the OR-OSHA enforcement action is resolved.

(5) An employer who enters into negotiation for sale or merger of business after requesting Worksite Redesign Program assistance must provide the department documentation of their ongoing commitment and ability to undertake and complete the activities as described in its grant application. The department will review the material provided by the employer and will determine the appropriateness and feasibility of proceeding with the grant request process.

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0865

Procedure to Use the Worksite Redesign Program

(1) An applicant must submit a complete, written application in the form and format prescribed by the director.

(2) The department may provide education and consultation to potential applicants, applicants and grantees.

Stat. Auth.: ORS 656.622(9) and 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0870

Application Review

(1) Upon receipt of an application, the department may authorize consultation services provided by consultants under contract.

(2) The department will review applications and prepare staff reports for Committee review.

(3) After department review, the worksite redesign grant application and corresponding staff report will be forwarded to the Committee for review.

(4) In reviewing worksite redesign grant applications, the Committee will consider the following elements:

(a) Program eligibility criteria;

(b) Funding limitations established by the director;

(c) The funding priorities established by the department;

(d) The quality review criteria established by the department;

(e) The staff report provided by the department;

(f) Feasibility and appropriateness to recommend approval for an employer who is negotiating sale or merger; and

(g) Appropriateness to recommend approval for a grant which may result in a reduction in the employer's labor force.

(5) Following completion of a worksite redesign grant, the department may solicit applications for a product grant.

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0875

Grant Awards

(1) The department or its designee will notify applicants, in writing, of the approval or disapproval of the grant request.

(2) The applicant must provide reports and documentation relating to the grant and the terms and conditions agreed to in connection with the grant.

(3) Grant recipients must make available to the department all records and materials necessary to monitor a grant.

(4) Upon approval of the worksite redesign grant application, the department will authorize funding, to include disbursement intervals, in accordance with the conditions agreed upon in the approved grant agreement.

(5) Upon approval of the product grant application, the department will authorize funding for the product.

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0880

Program Evaluation

(1) The director or designee will conduct studies to evaluate the Worksite Redesign Program's success in precluding on-the-job injuries. Findings of such studies will be presented to the Management/Labor Advisory Committee.

(2) Grantees may be required to conduct studies to evaluate the success of the worksite redesign at their establishment. The studies will be conducted in a manner agreed upon with the department.

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0885

Audits

(1) Applicants selected for funding are subject to periodic program and fiscal audits.

(2) The grantee must maintain case files, notices, records, reports, receipts and canceled checks or payment verification documenting use of any and all Worksite Redesign Program funds as well as funds the grantee commits to an approved Worksite Redesign Program grant project. These records must be maintained for a period of 6 years after the last grant disbursement.

(3) The department reserves the right to visit the worksite to determine compliance with the Worksite Redesign Program agreement.

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0890

Sanctions

If the director finds any violation of OAR 437-001-0850, 437-001-0860, 437-001-0875, 437-001-0885, or if the terms and conditions under which the agreement was approved are not met, the director may take one or more of the following actions:

(1) Immediately revoke approval of the use of the Worksite Redesign Program funds;

(2) Require repayment of all or a portion of any funds disbursed;

(3) Prohibit the employer, employer group, employee group , educational association, or educational institution from receiving additional grants for a period of up to 3 years; and

(4) Use any other legal action necessary.

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0895

Issuance/Service of Sanction Orders

(1) When a sanction is invoked as provided by OAR 437-001-0890, the Division shall serve an order on the party, with a notice of the rights provided under ORS 654.078.

(2) An order will be served upon the grantee or their registered agent by certified mail or in person.

Stat. Auth.: ORS 656.622(9) & ORS 656.622
Stats. Implemented: ORS 656.622
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

Rules for the Administration of Loss Prevention Activities by Insurers/Self-Insured Employers

General

437-001-1005

Authority and Applicability of Rules

(1) OAR 437-001-1005 through 437-001-1065 are promulgated under the Director's authority contained in ORS 654.097.

(2) The Director of the Department of Insurance and Finance delegates the Administrator of the Accident Prevention Division the authority to enforce these rules.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: APD 21-1988, f. & cert. ef. 12-27-88; OSHA 7-1992, f. & cert. ef. 7-31-92

437-001-1010

Purpose and Scope

(1) Nothing in these rules is intended to impose a duty upon the insurer or to transfer from the employer to the insurer responsibility set forth in ORS 654.001 to 654.991, or to impose liability other than these rules upon the insurer for failure to identify any unsafe conditions or occupational health and safety hazard.

(2) The purpose of these rules is to promote workplace health and safety by:

(a) Establishing insurer and self-insured employer loss prevention services designed to advise employers on regulations, laws, means and methods for improving health and safety at their places of employment; and

(b) Providing for the evaluation of insurers' and self-insured employers' loss prevention activities by the OR-OSHA Division to ensure compliance with the law and these rules.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: APD 21-1988, f. & cert. ef. 12-27-88; OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-1015

Definitions

(1) Establishment: A single physical location where business is conducted or where services or industrial operations are performed. Where distinctly separate activities are performed at a single physical location, each activity shall be treated as a separate establishment.

(2) Insured employer: An employer insured with a workers’ compensation carrier.

(3) Insurer: The State Accident Insurance Fund (SAIF) Corporation or any insurance company authorized or regulated under ORS Chapter 731 to issue workers’ compensation insurance policies in Oregon.

(4) Loss prevention effort: An ongoing effort by the self-insured employer to integrate health and safety into the workplace in such a manner that occupational injuries and ill- nesses are reduced.

(5) Loss prevention plan: A plan developed by the employer with the assistance of the insurer with the primary emphasis on reduction of workplace injuries and illnesses.

(6) Loss prevention services: Services designed to advise and assist employers in the identification, evaluation, and control of existing and potential causes of accidents and occupational health and safety problems.

(7) Loss prevention services program: A program intended to promote occupational health and safety, and to help eliminate and control work hazards to employees.

(8) Self-insured employer: An employer certified under ORS 656.430 as meeting the qualifications of a self-insured employer set out by ORS 656.407.

(9) Substantial failure to comply: The failure by an insurer or self-insured employer to respond or make available timely on-site services; failure to respond or make available in a timely manner specialized consultative services or:

(a) If an insurer fails to identify and advise of in a timely manner reasonably discoverable serious or life-threatening hazards within the scope of the services requested or provided or:

(b) If a self-insured employer fails to identify and control in a timely manner reasonably discoverable serious of life-threatening hazards within the scope of the services requested or provided.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: APD 21-1988, f. & cert. ef. 12-27-88; Administrative Correction 8-5-97; OSHA 7-1999, f. & cert. ef. 7-15-99; OSHA 2-2009, f. 1-27-09, cert. ef. 2-3-09

437-001-1020

General Requirements

(1) The insurer or self-insured employer shall, within 60 days after the effective date of these rules, submit to the Administrator the following information:

(a) The name of the insurer or self-insured employer;

(b) The insurer’s or self-insured employer’s Oregon business address where records are kept; and

(c) The name or title, business address, and telephone number of the representative who will act as liaison with the Division in all matters pertaining to loss prevention services.

(2) After the first 60 days these rules are in effect, each new insurer must comply with OAR 437-001-1020(1) at the time of application for the authority to issue insurance policies in Oregon.

(3) After the first 60 days these rules are in effect, each self-insured employer shall submit the information required in OAR 437-001-1020(1) at the time the employer submits its application to the Compliance Section of the Workers’ Compensation Division for self-insurance.

(4) Each insurer or self-insured employer shall notify the Division, in writing, of any change in the information in OAR 437-001-1020(1)(a) through (c) within 30 days of that change.

(5) When requested by the Division, each insurer and self-insured employer shall make available with reasonable promptness copies of loss prevention, loss control and related records.

(6) The duty of compliance with OAR 437-001-1005 through 437-001-1065 is that of the insurer or self-insured employer regardless whether the insurer or self-insured employer contracts for assistance for the required services.

Stat. Auth.: ORS 654.025(2) & 656.726(4)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: APD 21-1988, f. & cert. ef. 12-27-88; OSHA 8-1991, f. 4-25-91, cert. ef. 5-1-91; Administrative Correction 8-5-97; OSHA 7-1999, f. & cert. ef. 7-15-99; OSHA 2-2009, f. 1-27-09, cert. ef. 2-3-09

Insurers' Programs

437-001-1025

Notification of Services

(1) When an insurer writes a workers' compensation policy for an employer, and annually thereafter, the insurer shall inform the employer at the employer's Oregon main office of the loss prevention services that are available. The information shall include at least the following:

(a) A description of all loss prevention services that the insurer is required to offer, and other loss prevention services the insurer provides;

(b) A description of the availability of and process for obtaining loss prevention services;

(c) An offer, by the insurer, of an on-site evaluation of the loss prevention service needs of the insured;

(d) An explanation of the employer's responsibility to provide a safe and healthful workplace as required by the Oregon Safe Employment Act (ORS 654.001 to 654.295 and 654.991); and

(e) A statement of the employer's right to make a complaint to the OR-OSHA Division if an insurer fails to respond to a request from one of its insured employers for loss prevention services or otherwise fails to provide services as offered or required.

(2) An insurer shall provide the material described in section (1) of this rule and instructions that the employer distribute this material to each of the employer's fixed places of employment in Oregon.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: APD 21-1988, f. & cert. ef. 12-27-88; OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-1030

Requests for Services

(1) Any request by an insured employer regarding an imminent danger hazard shall be responded to with loss prevention services as soon as possible by the insurer.

(2) Any other requests regarding alleged hazards other than imminent danger shall be responded to with loss prevention services as soon as practicable, but not longer than 30 days following the date of the request.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: APD 21-1988, f. & cert. ef. 12-27-88; OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-1035

Loss Prevention Services

(1) Each insurer shall make occupational health and safety loss prevention services available to all its insured employers and shall provide certain other services as required by this rule.

(2) At a minimum, loss prevention services and personnel providing the services must meet the needs of the particular place of employment, special industry, or process, and shall include at least the following:

(a) Evaluation of the employer's loss prevention needs;

(b) Assistance in evaluating records that may be pertinent to the firm's illness and injury experience;

(c) An explanation to the employer of the Oregon Safe Employment Act and rules that apply to the particular place of employment;

(d) Provision of partial or complete on-site health and safety surveys, which identify all reasonably discoverable occupational safety and health hazards within the scope of the survey scheduled;

(e) Assistance with industrial hygiene and safety evaluations to detect physical and chemical hazards of the workplace, and implementation of engineering or administrative controls;

(f) Assistance with evaluating, obtaining, and maintaining personal protective equipment;

(g) Evaluation of work practices, workplace design, and assistance with job site modifications;

(h) Assistance in evaluating and improving an employer's safety management practices;

(i) Assistance in identifying health and safety training needs and available resources; and

(j) An offer to provide follow-up services.

(3) Loss prevention services shall include a written report with a plan of action.

(4) If, when providing loss prevention services, a condition of imminent danger is observed (see OAR 437-001-0015(34)), the insurer shall advise the employer of the hazard and the need to immediately correct it.

(5) All insurers shall maintain records of all loss prevention services provided at the locations designated by the insurer for Division personnel's review and must be maintained for not less than three years following the date the service was provided.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: APD 21-1988, f. & cert. ef. 12-27-88; OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-1040

Required Loss Prevention Services

(1) An insurer shall offer to assist in developing a loss prevention plan with each of its employers with a claims frequency or severity greater than its average employer in the same industry. The plan shall promote self-sufficiency on the part of the employer to reduce injuries and illnesses, and shall include a means to identify and control all reasonably discoverable occupational health and safety hazards.

(2) The assistance shall include the following:

(a) Employer notification of the available services.

(b) Perform a workplace hazard survey.

(c) Review of injury records and documentation of activities designed to lead to the reduction of workplace injuries and illnesses.

(d) Assist the employer in developing a written loss prevention plan that is based upon the results of the hazard survey and review of injury records. The plan must at a minimum address the following loss prevention principles:

(A) Management commitment to health and safety;

(B) An accountability system for employer and employees;

(C) Training practices and follow-up;

(D) A system for hazard assessment and control;

(E) A system for investigating all recordable occupational injuries and illnesses that includes written findings and corrective action;

(F) A system for evaluating, obtaining, and maintaining personal protective equipment;

(G) Evaluation of workplace design, work practices and assistance with job site modifications; and

(H) Employee involvement in the health and safety effort.

(e) Tailor the plan to meet the needs of the employer for reduction of injuries and illnesses while promoting self-sufficiency on the part of the employer.

(3) The insurer's obligation to assist shall end if the employer declines the services offered by the carrier.

(4) The Division may evaluate the insurers' targeted loss prevention services program randomly, however no more frequently than every three years.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: APD 21-1988, f. & cert. ef. 12-27-88; OSHA 10-1990(Temp), f. & cert. ef. 5-31-90; OSHA 24-1990, f. & cert. ef. 10-10-90; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 7-1999, f. & cert. ef. 7-15-99

Self-Insured and Group Self-Insured Employers' Programs

437-001-1050

Self-Insured and Group Self-Insured Employer Loss Prevention Assistance

(1) A self-insured employer and each self-insured group shall make available to each of its workplace or group locations occupational safety and health loss prevention assistance.

(2) A self-insured employer or group shall acknowledge all requests for services which do not involve alleged hazards from any of its locations within 30 days by schedule a date to begin providing services.

(3) Any request from locations of the self-insured employer or group regarding imminent danger an alleged hazard shall be responded to as soon as possible with loss prevention services.

(4) All other requests regarding alleged hazards other than imminent danger shall be responded to with loss prevention services as soon as practicable, but not longer than 30 days following the date of the request.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: APD 21-1988, f. & cert. ef. 12-27-88; OSHA 8-1991, f. 4-25-91, cert. ef. 5-1-91

437-001-1055

Self-Insured and Group Self-Insured Employer Loss Prevention Programs

Each self-insured employer and each member of a group self-insured program shall establish and implement a written occupational health and safety loss prevention program for each establishment. As a minimum requirement, the program shall:

(1) Provide for a loss prevention effort within the normal functions of the business for prevention or reduction of health and safety injuries and illnesses; and

(2) Inform its managers and workplace locations of the availability and the process for requesting loss prevention assistance.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: APD 21-1988, f. & cert. ef. 12-27-88; OSHA 8-1991, f. 4-25-91, cert. ef. 5-1-91

437-001-1060

Self-Insured and Group Self-Insured Employer Loss Prevention Effort

Each self-insured employer and each member of a group self-insured program shall implement a loss prevention effort for each of it locations, which identifies and controls all reasonably discoverable occupational safety and health hazards and items not in compliance with the federal or the division's occupational safety and health laws, rules and standards. The self-insured group shall assist each member of the group in developing and implementing the loss prevention effort. This loss prevention effort shall include at least the following:

(1) Management commitment to health and safety;

(2) An accountability system for employer and employees;

(3) Training practices and follow-up;

(4) A system for hazard assessment and control;

(5) A system for investigating all recordable occupational injuries and illnesses that includes corrective action and written findings;

(6) A system for evaluating, obtaining, and maintaining personal protective equipment;

(7) On-site routine industrial hygiene and safety evaluations to detect physical and chemical hazards of the workplace, and the implementation of engineering or administrative controls;

(8) Evaluation of workplace design, layout and operation, and assistance with job site modifications utilizing an ergonomic approach;

(9) Employee involvement in the health and safety effort; and

(10) An annual evaluation of the employer's loss prevention activities based on the location's current needs.

(11) The group shall maintain records which document the assistance provided to each member of the group.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: APD 21-1988, f. & cert. ef. 12-27-88; OSHA 8-1991, f. 4-25-91, cert. ef. 5-1-91

Assessment of Civil Penalties

437-001-1065

Penalty Provisions for Insurers

(1) For insurers who fail to comply with the law and the requirements of OAR 437-001-1005 through 437-001-1065, the Administrator:

(a) Shall assess a civil penalty in accordance with ORS 654.086(i); and

(b) May send a notice to an insurer, in accordance with ORS 656.447, of the Director's intent to request the Administrator of the Insurance Division to suspend or revoke the insurer's certificate of authority.

(2) For self-insured employers who fail to comply with the law and the requirements of OAR 437-001-1005 through 437-001-1065, the Administrator shall assess a civil penalty in accordance with ORS 654.086(i).

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: APD 21-1988, f. & cert. ef. 12-27-88; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

APPENDIX A

(See OAR 437-001-1040(2)(a))

Mandatory Loss Prevention Plan Worksheet

This worksheet is provided to analyze the employer's loss prevention needs, and shall be completed jointly by the insurer and the employer. The information is for use by the employer in developing a comprehensive, written loss prevention plan to assist in lowering the employer's occupational injury and illness rate. The insurer is required to assist the employer in developing a loss prevention plan. A copy of this worksheet, including the results from the hazard assessment survey(s) completed by the insurer, must be provided to the employer.

Note: Insurers may use alternate worksheets to document the development of employer loss prevention plans, if they have been approved in advance by the Department of Consumer and Business Services.

Please attach any additional information if space provided is inadequate.

Date

Employer

Insurer

Name of Employer Representative

Name of Insurer Representative

1. Did the employer agree to develop a loss prevention plan? Yes/No? If not, how is this confirmed by the insurer?

2. Is management committed to occupational safety and health? How is this communicated to employees and supervisors?

3. Explain in detail how supervisors and employees are held accountable for occupational safety and health.

4. How are training programs and practices developed? How are training needs determined? What recordkeeping system is used to determine which employees have had training? What follow-up measures will be used to determine if training is effective?

5. Explain the employer's system for hazard assessment and control. Who is in charge of this system? How will the employer document the system's implementation and use?

6. Describe the employer's system for investigating accidents. Who investigates the accidents and analyzes results? How are findings communicated and to whom?

7. What personal protective equipment do employees need? Describe the employer's system for evaluating, obtaining and maintaining all personal equipment. Who keeps what types of records on maintenance of personal protective equipment?

8. Explain and provide specifics on evaluation of the employer's workplace design, layout, and operation from an ergonomic approach. What assistance will the insurer provide to the employer for job site modifications from an ergonomic approach?

9. How is employee involvement in the occupational safety and health effort demonstrated? How is the opportunity for involvement communicated to employees? If meetings are held, how often? What is the scope of the meetings and who attends them? Who takes the minutes of the meetings? How are meeting results communicated?

10. A hazard assessment survey must be conducted. (See ORS 656.451(3): "Such services shall include the conduct of workplace surveys to identify health and safety problems)." What are the specific findings of this survey? How will hazards identified or suspected be addressed in tailoring the plan to meet specific needs of the employer? How will hazards be corrected?

11. After completing this analysis of the employer's loss prevention management plan, who will be responsible for writing the plan: the insurer, the employer, or both? In what time frame will this plan be written?

12. The insurer must assist the employer in implementing the loss prevention plan. Has the employer requested such assistance? If so, when will the insurer meet again with the employer to assist in this ongoing effort?

This form is provided as a service to workers' compensation insurers by the Department of Consumer and Business Services, Oregon Occupational Safety and Health Division (OR-OSHA). Photocopying is permitted.

APPENDIX B

Instructions for Computing Lost Workday Case Incident Rates (LWDCIR) for an Individual Firm

Incidence rates for an individual establishment or firm may be calculated by employers by using the same formula used to calculate industry-wide incidence rates from the annual Occupational Injury and Illness Survey. An employer may then compare her/his own work injury and illness experience to the overall experience in her/his industry in Oregon or the nation.

The formula requires: (a) the number of lost workday cases, and (b) the number of hours actually worked by all employees during the reference period. To produce an overall incidence rate:

(a) Determine the number of lost workday cases by adding the totals for columns 2 and 9 of the Occupational Injuries and Illnesses Log (OSHA No. 200).

(b) Total the number of hours actually worked during the year by all employees from payroll or other time records. The hours worked figure should not include any non-work time even though paid, such as vacations, sick leave, holidays, etc. (If actual hours worked are not available for employees paid on commission, salary, by the mile, etc., hours worked may be estimated on the basis of scheduled hours or 8 hours per workday.) The formula for computing the incidence rate is as follows:

(a) Number of lost workday cases x 200,000 = lost workday employee hours worked.

(b) Case Incidence Rate: This rate represents the number of lost workday cases occurring per 200,000 hours of work exposure or 100 full-time equivalent workers. The same base is used in computing the occupational injury and illness rates for Oregon and for the nation.

The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use

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