State Oregon Regulations CHAP 437 DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, OREGON OCCUPATIONAL SAFETY AND HEALTH DIVISION DIVISION 1 RULES FOR THE ADMINISTRATION OF THE OREGON SAFE EMPLOYMENT ACT The Oregon Administrative Rules contain OARs filed through July 14, 2006 DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, OREGON OCCUPATIONAL SAFETY AND HEALTH DIVISION DIVISION 1 RULES FOR THE ADMINISTRATION OF THE OREGON SAFE EMPLOYMENT ACT [ED NOTE: OAR 436, Division 046, Rules for the Administration of the Oregon Safe Employment Act, was redesignated as OAR 437, Division 001, by APD Admin. Order 7-1988, filed 6/17/88. Its effective date remains 7/1/74.] 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, 2006, 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. 2-14-06 437-001-0002 Notice to Interested Persons of Rulemaking Except when acting in an emergency to adopt 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: (1) By causing notice of the proposed action to be published once, in the Secretary of State's bulletin referred to in ORS 183.360, prior to the effective date of the adoption, amendment or repeal of the rule as provided in ORS 183.335. (2) By mailing a copy of Notice to persons on the Oregon Occupational Safety and Health Division's mailing list established pursuant to ORS 183.335(7). (3) By mailing or delivering a copy of the Notice to any person upon request; and (4) By mailing copies of the Notice to persons that may have an interest in the subject matter of the proposal, and to organizations and publications that may provide notice to persons who may have an interest, such as the following, depending on the subject matter of the proposal: (a) Workers' Compensation Insurers; (b) Self-Insured Employers; (c) News Organizations; (d) Labor Unions; (e) Employer Groups and Associations; (f) Interested Parties; (g) Employers and Employees. Stat. Auth.: ORS 654.025(2) & ORS 656.726(3) Stats. Implemented: ORS 654.001 - ORS 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 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(3). (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 Chapter 436, Division 46, OAR 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: Stat. Auth.: ORS 654.025(2) & ORS 656.726(3) Stats. Implemented: ORS 654.001 - ORS 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. 10-1-92 437-001-0010 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: (1) Abatement -- Action by an employer to comply with a cited violation of the Oregon Safe Employment Act. (2) 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. (3) 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). (4) Act -- The Oregon Safe Employment Act (ORS 654.001 to 654.295, 654.750 to 654.780, and 654.991). (5) Administrator -- The Administrator of the Oregon Occupational Safety and Health Division (OR-OSHA). (6) 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. (7) Agent of the employer -- The manager, superintendent, foreperson or other person in charge or control of all or part of the place of employment. (8) Appeal -- A written request for a hearing in which to contest a citation, notice or order issued by the Division. Unless the context otherwise requires, any writing which clearly contests, objects to or seeks relief from a Division citation, notice or order shall be construed as an appeal. (9) Audiometric Zero -- The lowest sound pressure level that the average, young adult with normal hearing can hear. (10) Board -- The Workers' Compensation Board created by ORS 656.712. (11) Catastrophe -- 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. (12) Citation -- A document issued by the Division pursuant to ORS 654.071 to cite a violation. A citation may include a notice of penalty and a correction order. (13) 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. (14) Compliance Officer -- A designated Division employee whose responsibility is to conduct inspections or investigations to identify possible violations and hazards and to propose citations, penalties and correction dates, and to assist employers and employees with information to correct violations and hazards. (15) Comprehensive Consultation -- is a consultation to cover the entire establishment and entails a physical hazard assessment evaluation, reviews 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. (16) Consultant -- A designated Division 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. (17) Correction order -- A written Division order which directs a person to stop a violation within a given period of time. The term also includes a Red Warning Notice issued pursuant to OAR 437-001-0096. (18) Days Away, Restricted, or Transferred (DART) -- 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). (19) 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. (20) Department -- The Department of Consumer and Business Services. (21) Director -- The Director of the Department of Consumer and Business Services, or the Director's designee. (22) Division -- The Oregon Occupational Safety and Health (OR-OSHA) Division of the Department of Consumer and Business Services. (23) Emphasis Program -- A special program that targets Division activity to industries that, according to national or state data, have a high potential for serious injuries or illnesses. (24) Employee -- Any individual who is currently employed or formerly employed, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, financial or otherwise, 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, or any individual who is provided with workers compensation coverage as a subject worker pursuant to ORS Chapter 656, whether by operation of law or by election. (25) Employee exposure record -- A record of monitoring or measuring which contains a 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. (26) Employee medical record -- A record which 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. (27) Employee representative -- A bargaining unit representative, or an individual selected by employees, who serves as their spokesperson. (28) Employer -- Any person who has one or more employees, or any sole proprietor or member of a partnership who elects workers compensation coverage as a subject worker pursuant to ORS 656.128. (29) 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. (30) Environmental Exposure Sampling -- Sampling of the work place environment, performed for a variety of reasons including, identification of contaminants present and their sources, determination of worker exposures and checking the effectiveness of controls. (31) Establishment -- An establishment is a single physical location doing business or offering services or with 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 offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel 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) No one industry description in the Standard Industrial Classification Manual (1987) applies to the joint activities of the establishments; and (D) 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, do not keep a separate 300 Log. Link employees who telecommute to one of your establishments under 437-001-0700(15)(c). (32) Farm operation -- Any operation involved in the growing or harvesting of crops or the raising of livestock or poultry. (33) Filed -- A document shall be deemed to have been filed on the date of postmark if mailed or on the date of receipt if transmitted to OR-OSHA, DCBS, or the WCB by other means. (34) First aid -- Any one-time treatment and subsequent observation of minor scratches, cuts, burns, splinters or similar injuries which do not ordinarily require medical care. Such one-time treatment and subsequent observation is considered first aid even though provided by a physician or registered professional personnel. (35) Fixed place of employment -- The entire facility maintained by an employer at one general location, 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. (36) Hazard -- A condition, practice or act which could result in an injury or illness to an employee. (37) 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. (38) Imminent danger -- A condition, practice or act which exists in any place of employment and could reasonably be expected to cause death or serious physical harm immediately. (39) 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, a 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.) (40) Inspection -- An official examination of a place of employment by a Compliance Officer to determine if an employer is in compliance with the Act. An inspection may be classified as: (a) Programmed. (A) Routine inspection -- An inspection of a place of employment which is made based principally on that place of employment's record of workers' compensation claims or Standard Industrial Classification and number of employees; (i) Emphasis inspection -- An inspection made in response to a national or state Emphasis Program. (B) Periodic inspection -- An inspection made because of a time-related factor, including, but not limited to, intermittent or seasonal employment activity; (C) Area inspection -- An inspection made because of a geographic factor; (D) Random inspection -- An inspection scheduled and conducted pursuant to written neutral administrative standards. (b) Unprogrammed. (A) Follow-up inspection -- An inspection made to determine if a previously cited violation has been corrected or after a request for an extension, a stay of correction time or a variance has been denied; (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; and (D) Referral inspection -- An inspection made in response to a referral. (41) 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. (42) Lost workdays -- The actual number of days after, but not including, the day of injury or illness during which the employee would have worked, but could not perform all or any part of his/her normal assignment during all or any part of the employee's next regular workday or shift because of the occupational injury or illness. (43) Lost Workday Cases Incidence Rate (LWDCIR) (Also see DART) -- The number of lost workday injury and illness cases experienced by 100 full-time workers (LWDCIR = Number of lost workday cases times 200,000 divided by the number of employee hours worked). (44) 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. (45) 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. (46) 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. (47) 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. (48) 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. (49) Place of employment -- Includes every place, whether fixed or movable, whether indoors or out or underground, and the premises and structures appurtenant thereto, where either temporarily or permanently an employee works or is intended to work and every place where there is carried on 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 his/her employees or by another person engaged in providing living quarters or shelters for employees, but place of employment does not include any place where the only employment involves nonsubject workers employed in or about a private home. 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. (50) Record -- Any recorded information regardless of its physical form or character. (51) Recordable occupational injuries or illnesses -- Any occupational injuries or illnesses which 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 his/her normal assignment during any part of the employee's next regular, or any subsequent workday or shift; or (c) Non-fatal cases, without lost workdays which result in transfer to another job or termination of employment, or 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 which are reported to the employer but are not classified as fatalities or lost workday cases. (52) Referral -- A notification made to the responsible agency of safety or health violations observed by a Division employee, other federal, state or local government representatives, or the media. (53) 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 which do not substantially affect the interests of the public. (54) Scheduling List -- An electronic or paper list of places of employment or employers scheduled for inspection. Lists can be in electronic form, paper form or both. (55) 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. (56) 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 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, which 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. (57) 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. (58) Substantial failure to comply -- When an employer engaged in the production of crops intended for human consumption fails to provide acceptable and accessible toilet facilities, handwashing facilities or drinking water, and that failure exposes affected workers to a serious hazard likely to result in an injury or illness. (59) Suspended penalty -- A penalty which is determined but not assessed. (60) Variance -- The written authority given by the Division 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 in accordance with 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. (61) 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 in which there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations or processes which 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 of the presence of the violation; (B) Other than serious violation -- A violation which is other than a serious or minimal violation; and (C) Minimal violation -- A violation which 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 of the requirements of the same statute, regulation, rule, standard or order. (ii) Subsequent violations shall not be considered to be a repeat when more than 36 months have elapsed and the violation has not reoccurred. (iii) In these rules, Repeat, Repeated and Repeatedly are used as synonyms. (D) First-instance violation -- An employer's first violation of a particular statute, regulation, rule, standard or order. (E) Egregious -- Those conditions which normally constitute a flagrant violation of the OSEAct or OR-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 which 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 which have been combined as one violation to indicate an increase in the severity of the violation. 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 , 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. 11-26-03 437-001-0020 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 His.: 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 shall be prioritized to predominantly focus enforcement activities upon places of employment reasonably believed to be the most unsafe. Inspections should be made according to the following priorities: (1) Imminent danger -- An inspection shall be made as soon as possible after the Division becomes aware of the condition or practice. (2) Fatality, catastrophe or accident -- An investigation may 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 and the nature of the information indicates the complaint's probable validity. (4) Referral -- An inspection may be made if safety or health violations were observed by a Division employee or other federal, state or local governmental representative and the nature of the information indicates the referral's probable validity. (5) Programmed Inspections -- An inspection may be made by following the provisions in OAR 437-001-0057. (6) Follow-up -- An inspection: (a) Shall be initiated when the employer requests removal of a Red Warning Notice; or (b) Shall be initiated when a stay of correction or a variance has been denied; or (c) May be initiated when an extension of time has been denied; or (d) May be initiated when the Division believes the employer is not in compliance or to monitor progress towards correction of a violation; or (e) May be initiated when the employer is issued a citation with a correction order for one or more serious violations. 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; 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. 4-15-00 437-001-0057 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 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, 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 on an annual basis. (4) Scheduling of Fixed Places of Employment for Safety Inspections. (a) The following scheduling lists are designed as an electronic scheduling system used by safety enforcement managers to schedule fixed places of employment for each compliance officer. The scheduling lists will be sorted by field office. Employers will be selected and placed on one of four lists based on the following criteria: (A) List A -- Fixed places of employment, excluding agriculture, which have 11 or more employees. The following neutral administrative criteria will be used to place employers on this list: (i) One or more accepted disabling claims in the first 12 of the previous 18 months; and (ii) No comprehensive safety inspection within the previous 24 months. The employers on this list will be ranked using SIC, Violation History, Weighted Claims Rate, and Weighted Claims as described in subsection (b) of this section. (B) List B -- Fixed places of employment, excluding agriculture, which have 10 or fewer employees. The following neutral administrative criteria will be used to place employers on this list: (i) One or more accepted disabling claims in the first 12 of the previous 18 months; and (ii) No comprehensive safety inspection within the previous 24 months. The employers on this list will be ranked using SIC, Violation History, Weighted Claims Rate, and Weighted Claims as described in subsection (b) of this section. (C) List C -- Agriculture places of employment (SIC 01, 02, 0711, 0721, 0722, 0723, 0761, 0762, 0783, 0811) which have 11 or more employees. The following neutral administrative criteria will be used to place employers on this list: (i) One or more accepted disabling claims in the first 12 of the previous 18 months; and (ii) No comprehensive safety inspection within the previous 24 months. The employers on this list will be ranked using SIC, Violation History, Weighted Claims Rate, and Weighted Claims as described in subsection (b) of this section. (D) List D -- Agriculture places of employment (SIC 01, 02, 0711, 0721, 0722, 0723, 0761, 0762, 0783, 0811) which have 10 or fewer employees. The following neutral administrative criteria will be used to place employers on this list: (i) One or more accepted disabling claims in the first 12 of the previous 18 months; and (ii) No comprehensive safety inspection within the previous 24 months. The employers on this list will be ranked using SIC, Violation History, Weighted Claims Rate, and Weighted Claims as described in subsection (b) of this section. (b) Ranking Factors: The employers on scheduling lists A, B, C, and D are ranked using High Hazard SIC, 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 by field office based on their score. (A) High Hazard SIC: The High Hazard SIC ranking comes from the Bureau of Labor and Statistics (BLS) with employers in an industry ranked as number one by BLS receiving a ranking of one and employers in an industry ranked as 200 by BLS receiving a ranking of 200. Employers in a SIC not ranked by BLS receive a rank of 999. For Agriculture lists, all employers will receive the same ranking of 999 since Agriculture SIC's are not ranked by BLS. (B) 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. Points are added together 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, which will put them at the top of this category. (C) 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. (D) 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 (C) 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 Managers will provide each Compliance Officer a list of inspections that are assigned in descending order from lists A through D. The Compliance Officer will make a reasonable effort to inspect each employer on that list prior to receiving another list, however failure to inspect all employers 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 utilize the Compliance Officer's time efficiently. (d) No more than one scheduled comprehensive safety inspection will be made at any particular fixed place of employment in any 24-month period unless the place of employment has five or more accepted disabling claims or has processes or operations which vary within the 24-month period. (5) Scheduling of Non-Fixed Places of Employment for Safety Inspections. (a) Construction and logging 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 neutral administrative criteria will be used to select and rank employers on this list: Construction employers which 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) Logging List -- The following neutral administrative criteria will be used to select and rank employers on this list: Logging employers which have one or more accepted disabling claims in the first 12 of the previous 18 months and are ranked in the top 50 logging 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 logging 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 logging 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. An 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, which 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 logging lists. The Compliance Officers will make a reasonable effort to locate and inspect those employers on the construction and logging lists, however failure to inspect all employers on a list will not invalidate subsequent inspections. (6) Scheduling of Fixed Places of Employment for Health Inspections. (a) The health scheduling lists are designed as an electronic scheduling system used by health enforcement managers to schedule fixed site inspections for each compliance officer. The scheduling lists will be sorted by field office. Employers will be selected and placed on one of four lists based on the following criteria: (A) List E -- Fixed places of employment in SIC of 13, 15-51, 598, 72-76, 80, 822, 8731, 8734, 8744, or 922 which have 11 or more employees. The following neutral administrative criteria will be used to place employers on this list: (i) One or more disabling health claims in the previous 36 months; or (ii) A health inspection with one or more health violations in the previous 36 months; and (iii) No comprehensive health inspection within the previous 24 months. (B) List F -- Fixed places of employment in SIC of 13, 15-51, 598, 72-76, 80, 822, 8731, 8734, 8744, or 922 which have 10 or fewer employees. The following neutral administrative criteria will be used to place employers on this list: (i) One or more disabling health claims in the previous 36 months; or (ii) A health inspection with one or more health violations in the previous 36 months; and (iii) No comprehensive health inspection within the previous 24 months. (C) List G -- Agriculture places of employment (SIC 01, 02, 0711, 0721, 0722, 0723, 0761, 0762, 0783, 0811) which have 11 or employees. The following neutral administrative criteria will be used to place employers on this list: (i) One or more disabling health claims in the previous 36 months; or (ii) A health inspection with one or more health violations in the previous 36 months; and (iii) No comprehensive health inspection within the previous 24 months. (D) List H -- Agriculture places of employment (SIC 01, 02, 0711, 0721, 0722, 0723, 0761, 0762, 0783, 0811) which have 10 or fewer employees. The following neutral administrative criteria will be used to place employers on this list: (i) One or more disabling health claims in the previous 36 months; or (ii) A health inspection with one or more health violations in the previous 36 months; and (iii) No comprehensive health inspection within the previous 24 months. (b) Ranking Factors: The employers on the scheduling lists are ranked using Location Weighted Claims Count, Location Violation History, Employer Weighted Claims Count, Employer Violation History, SIC Claims Count, SIC Violation History, and High Hazard SIC. The rankings from each factor are combined to produce a score for each employer, and the employers are ranked by field office based on their score. (A) Location Weighted Claims Count: Selected location health claims from the first 12 of the previous 18 months are assigned points based on the seriousness of the claim, and 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 employer with the next highest points receiving a ranking of two, etc. (B) Location Violation History: Employers with a location health violation history will be assigned points for each health violation per health inspection at the location that have become a final order within the past 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. Points are added together 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. (C) Employer Weighted Claims Count: Employer selected health claims from the first 12 of the previous 18 months are assigned points based on the seriousness of the claim, and 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 employer with the next highest points receiving a ranking of two, etc. (D) Employer Violation History: Employers with a health violation history are assigned points for each health violation received per health inspection that have become a final order within the past 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. Points are added together with the employer with the most points receiving a ranking of one followed by the employer with the next most points receiving a ranking of two, etc. (E) SIC Claims Count: Employers are ranked in this category by the number of selected claims in their three-digit SIC over the previous 36 months and the weight factor assigned to the selected claims with the highest number receiving a ranking of one followed by the second highest receiving a ranking of two, etc. (F) SIC Violation History (not weighted): Employers are ranked in this category by the number of health violations per number of health inspections in their three-digit SIC in the previous 36 months. The three- digit SIC with the most violations receives a ranking of one followed by the second most receiving a ranking of two, etc. (G) High Hazard SIC: The High Hazard SIC ranking comes from the Bureau of Labor and Statistics (BLS) with employers in an industry with the number one ranking by BLS receiving a ranking of one and employers in an industry with a ranking of 200 by BLS receiving a ranking of 200. Employers in a SIC not ranked by BLS receive a rank of 999. For Agriculture lists, all employers receive the same ranking of 999 since Agriculture SICs are not ranked by BLS. 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 Managers will provide each Compliance Officer a list of inspections that are assigned in descending order from lists E through H. The Compliance Officer will make a reasonable effort to inspect each employer on that list prior to receiving another list, however failure to inspect all employers 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 utilize the Compliance Officer's time efficiently. (d) No more than one scheduled comprehensive health inspection will be made at any particular fixed place of employment in any 24-month period unless the place of employment has five or more accepted disabling claims or has processes or operations which vary within the 24-month period. (7) Scheduling of Non Fixed Places of Employment for Health Inspections -- An inspection may be scheduled when from information available to the Division, recognized health hazards known to be associated with certain processes, are reasonably thought to exist at the place of employment, and the Division determines the location of a work-site. (8) Random Inspections -- The Division will conduct random inspections of places of employment that are scheduled and conducted pursuant to written neutral administrative standards. The standards will be issued as Program Directives 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, and knowledge of recognized hazards associated with certain processes. Program Directives will be issued to establish and describe emphasis programs and the neutral administrative criteria 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 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 make reasonable efforts to notify, in writing, each employer whose accepted disabling claims rate is above the state average for its standard industrial classification and each employer whose industry is rated as one of the most unsafe industries in the state of the increased likelihood of inspection of their places of employment and of the availability of consultative services. (a) Notification will be done on an annual basis and sent, by regular mail, to the last known address on record with the Division. (b) Failure to provide notification to an employer pursuant to this section will not invalidate a subsequent inspection. (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 pursuant to ORS 654.062; or (b) Within a two-year period preceding the proposed inspection date, an accident at the agricultural employer's establishment has resulted in death or an injury or illness resulting in an overnight hospital admission for medical treatment or more than three days of lost work; or (c) The employer and principal supervisors of the agricultural establishment have not completed annually at least 4 hours of instruction on agricultural safety or health rules and procedures. This instruction must be documented. (A) The instruction will include any conducted or accepted by OR-OSHA. Instruction related to agricultural safety and health that is offered or approved by any public or private college or university or governmental agency will be deemed to be automatically accepted. Documentation of instruction must be maintained by the employer. Such documentation must include the date, provider and duration of the instruction, the subject covered 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, the agricultural employer has failed to correct violations noted in the consultation report within 90 days of receipt of 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) Effective Dates. The effective date for 437-001-0057(4) through (6) is October 1, 2000. The effective date for all other paragraphs in 437-001-0057 is April 15, 2000. 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; 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. 4-15-00 437-001-0060 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) Explain that employee participation may be accomplished through random interviews; (f) Determine if there are trade secrets to be protected; (g) Inform the employer that sampling may be done and photographs may be taken; (h) Explain that all violations which would normally be assessed a penalty and which are corrected prior to the end of the inspection will result in penalty reductions; (i) Determine what personal protective equipment is required to have and use such equipment; and (j) 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) & 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. 7-1-74 437-001-0080 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 shall be assessed for any serious violation and may be assessed for any other than serious violation by considering the penalty 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. (2) Penalty adjustments may be made based upon the employer's previous calendar years lost workday cases incidence rate, if available, and efforts made during the inspection to correct violations. Penalty adjustments shall not be applied to repeat, willful or failure to correct violations or to any violation which contributed to an injury, illness or death of an employee. Adjustments shall not reduce the penalty to less than the mandatory minimum penalty which has been established by rule or statute. Adjustments are: (a) A penalty reduction of 35% for each violation for an employer's lost workday cases incidence rate for the previous calendar year, if below the current published statewide average rate for that employer's Standard Industrial Classification. For fixed places of employment the lost workday cases incidence rate is based upon the rate for that place of employment. For non-fixed places the lost workday cases incidence rate is based upon the employer's rate statewide; (b) A penalty reduction of 30% for each violation, when the employer corrects the violation before the end of the inspection; (c) A penalty reduction of 10% may be given when the employer employed no more than 50 employees at any time in the previous 12 months, including the day of the inspection. (3) The adjusted penalty for a serious violation will not be less than $100. (4) The penalty for combined violations of the same rule shall be calculated by computing the penalty and possible adjustment for each subpart making up the combination and adding these to establish a total penalty for the combination. (5) The penalty for grouped violations of different rules shall be calculated by determining the probability and severity for the entire group. Table 1 Penalty Schedule Severity Serious Violation Other Probability Than Serious Serious Physical Harm Death Low 0 $300 $1,500 Medium $500 $2,500 High $300 $1,250 $5,000 (6) The Administrator may assess a penalty of up to $7,000 for any serious or other than serious violation after considering the facts. 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. 7-5-95 437-001-0155 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 Penalties may be assessed for repeat violations as follows: (1) A violation of any statute, regulation, rule, standard or order shall be cited as repeated when, upon reinspection, another violation of the previously cited statute, regulation, rule, standard or order is found. (2) Where a violation of a previously cited statute, regulation, rule, standard or order is present and that first violation has been appealed but not yet become final by operation of law: (a) The second violation shall be cited as a repeated violation; and (b) Such citation shall state that the prior violation has been appealed and the repeat classification of the current violation will be rescinded if the prior violation does not become final by order of law. (3) For purposes of considering whether a violation is a repeat violation 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. (4) For employers at non-fixed places of employment, repeat violations shall be based on prior violations occurring anywhere within the state. 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; 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. 9-30-94 437-001-0165 Determination of Penalty -- Repeat Violation (1) The penalty for a repeat violation shall be computed by multiplying the penalty for the current violation by the following factors: (a) 1st repeat -- x 2 (b) 2nd repeat -- x 5 (c) 3rd repeat -- x 10 (d) 4th repeat -- Discretion of Administrator (2) The total penalty for a repeat violation shall be not less than $200 nor more than $70,000. (3) For a repeated other than serious violation that otherwise would have no initial penalty, a penalty of $200 shall be assessed for the first repeated violation, $500 if the violation has been cited twice before, and $1,000 for a third repeat. 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. 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. 10-1-92 437-001-0170 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 nor more than $70,000. For egregious violations, the Administrator may assess a separate penalty for each instance of a violation. Stat. Auth.: ORS 654.025(2) & ORS 656.726(3) Stats. Implemented: ORS 654.001 - ORS 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. 10-1-92 437-001-0176 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. (7) Safety Committees -- If an employer fails to establish a safety committee as required by OAR 437-001-0765 in 437, division 1, General Provisions, a minimum penalty of $100 shall be assessed. [ED. NOTE: Forms referenced are available from the agency.] Stat. Auth.: ORS 654.025(2) & 656.726(3) 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 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 20 days of receipt of the citation by the employer. (2) The citation shall be served on the employer by certified mail or in person. (3) Each employee representative shall be sent a copy of all citations and notices of penalties issued. 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. 7-1-74 437-001-0215 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 three 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 three 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 21st 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) & 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. 7-1-74 437-001-0220 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 ten (10) 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) & 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. 7-1-74 437-001-0225 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 shall correct any violation the employer has been ordered to correct except when: (a) A general violation has been appealed; (b) A stay of the correction date has been ordered by the Hearings Division on an appealed serious violation; (c) 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 and used as the basis of possible penalty reduction. However, such correction shall not provide immunity from the issuance of a citation for 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 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. 7-1-74 437-001-0231 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 correction a violation. (2) An application for extension of the 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) Facts which show that the employer has made an effort to correct the violation by the date set for correction, but was unable to do so because of factors beyond the employer's control; (g) All available interim steps being taken to safeguard employees against the cited hazard during the requested extended correction period; (h) The date by which the employer proposes to complete the correction; and (i) A statement that a copy of the request for extension has been posted as required by OAR 437-001-0275(2)(d) and (h) or for at least ten (10) days, whichever is longer, and, if appropriate, served on the authorized representative of affected employees, and certification of the date upon which posting or service was made; (j) 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) & 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. 7-1-74 437-001-0245 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 Informal Conference (1) The Administrator shall provide an opportunity for the employer and employees to discuss informally with the Division any matter affecting occupational safety and health in the place of employment. (2) An informal conference may be used 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 to resolve disputed citations. Notwithstanding any other rule in this division, proposed civil penalties may be reduced as part of a settlement agreement resolving disputed claims. (3) An informal conference concerning a citation shall not extend the 20 days allowed for filing an appeal with the Board. (4) In those cases where an informal conference concerns a citation, the Division shall contact the employer and require them to notify the employees or their representatives of the opportunity to attend the informal conference. 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 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 7-1999, f. & cert. ef. 7-15-99 437-001-0260 Request for Informal Conference A request for an informal conference: (1) May be requested by either the employer or employee; (2) Need not be in any particular form; (3) Shall be addressed to the Administrator; and (4) Shall clearly state the subject to be discussed. 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. 7-1-74 437-001-0265 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 if There is No Timely Appeal (1) The Director may refer a matter arising under this rule to the Hearings Division of the Board for a hearing before a referee, who will provide the Director with proposed findings and recommendations. Persons whose rights may be affected, including affected employees, shall be given reasonable notice of such a hearing and an opportunity to participate as parties. (2) 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. (3) 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. (4) 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. (5) No decision shall be made on a manifest injustice request until ten 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 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 839-006-0020, 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 30 days after the employee had reasonable cause to believe discrimination occurred. (3) The complaint may also be filed in any Circuit Court of the State of Oregon, or the U.S. Department of Labor, 3056 Federal Office Building, Seattle, Washington 98174. 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; OSHA 7-2002, f. & cert. ef. 11-15-02 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 the Division; or (b) In any written form that includes all information required by section (2) and (3) of this rule. (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 (52)); (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,a t 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, OR-OSHA Division, 350 Winter St. NE, Salem, Oregon, before it becomes a final order; (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 shall 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 shall be funded adequately; and (g) Assurances that the Division shall 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 shall 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 represented, 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) & 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. 7-1-74 437-001-0405 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) Shall 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 shall decide whether to issue an interim order on the basis of information provided in the application. (3) If an interim order is granted, it shall be sent to the employer. The employer shall 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 shall be published in the manner required by OAR 437-001-0410(1). (5) If the interim order is denied, the employer shall be given prompt written notice of, and the reasons for, the denial. (6) An interim order or a written denial shall 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) & 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. 7-1-74 437-001-0410 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, the Division shall publish the request for one day in at least one daily newspaper with general circulation throughout Oregon. The notice shall 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 the Division's decision on the variance application; and (f) The address of the Division office from which further information may be obtained. (2) The Division may conduct an on-site review of the equipment or processes involved in the requested variance. (3) A variance, if granted, shall have no retroactive effect. It shall not be the basis for amending or withdrawing a citation. 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 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. 7-1-74 437-001-0411 Hearings for Variance Applications Affected employers or employees shall 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 20 days of publication of the application; (b) A request must be made to the Administrator 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) 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) The Administrator shall evaluate all information submitted at the hearing and make a determination in 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 67-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74 437-001-0415 Criteria for Variance Approval (1) An application for a permanent variance shall be granted only if the applicant demonstrates, and the Division determines which includes the consideration of employee or the public comments, that the conditions, practices, operations or processes proposed to be used by the applicant shall provide employment which is as safe and healthful as that obtained by compliance with the rule. (2) An application for a temporary variance shall be granted only if the applicant demonstrates, and the Division determines which includes the consideration of employee or the 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 shall be granted only if the applicant demonstrates, and the Division determines which includes the consideration of employee or public comments, that the conditions, practices, operations or processes used shall 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) & ORS 656.726(3) Stats. Implemented: ORS 654.001 - ORS 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. 7-1-74 437-001-0420 Decision on Variance Request (1) If a variance is granted, an order of variance shall be issued. The order shall: (a) State the name of the employer to whom the variance is granted; (b) Identify the place of employment at which the variance is applicable; (c) State the type of variance granted; (d) State the specific rule to which the variance applies; (e) Describe the alternative methods or safeguards to be used by the employer while the variance is in effect; (f) Advise that the employer may be cited for any violation of the conditions established by the variance; (g) Inform affected employees of their right to appeal the variance decision; and (h) Inform affected persons that if no appeal is filed within 20 days of receipt of the order, the variance approval becomes a final order of the Director and subject to review only as specified in OAR 437-001-0430. (2) If a variance is denied, a notice of denial shall be issued. The notice shall: (a) Give the reasons for the denial; (b) Notify the employer and employees of their appeal rights; (c) Inform affected persons that if no appeal is filed within 20 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) Advise the employer that a compliance inspection shall 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, shall be followed by a compliance inspection within 30 days. 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. 7-1-74 437-001-0425 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 six months or longer upon: (a) Request from the employer, an affected employee or an employee representative which may be in writing, the request shall contain: (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 thereof 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, a certification that a copy of the application has been furnished 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) A Division review. (2) The Division shall publish the proposed modification or revocation for one day in at least one daily newspaper with general circulation throughout Oregon. Exception: A revocation based on a company being out of business or no longer needed does not need to be published. The notice shall 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 shall be made within 20 days of publication; (e) Information on how interested persons may learn of the Division's decision on the variance; and (f) The address of the Division office from which further information may be obtained. (3) The Division 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 shall be advised in writing of modification or revocation of the variance. The modification or revocation order shall state: (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 shall be made within 20 days of publication and shall 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. 11-26-03 437-001-0435 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 shall 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 shall consider the federal variance as a possible defense against the citation. 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 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. [Publications: The publication(s) referred to in this rule are available from the agency.] 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) 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) (A) 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. 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 1 [Table not included. See ED. NOTE.] (5) 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. (a) 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.] The decision tree for recording work-related injuries and illnesses below shows the steps involved in making this determination. Flow chart. (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.] 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. 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.[Table not included. See ED. NOTE.] (a) 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 preexisting 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 not included. See ED. NOTE.] (b) 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) 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. (A) 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. (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 eight (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 one 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 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 OAR 437-001-0700(14)(a) through (14)(i). (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. (A) 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. (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 seven (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. 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 your 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 seven (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: (A) An injury or illness to an intimate body part or the reproductive system; (B) An injury or illness resulting from a sexual assault; (C) Mental illnesses; (D) HIV infection, hepatitis, or tuberculosis; (E) Needlestick injuries and cuts from sharp objects contaminated with another person's blood or other potentially infectious material; and (F) 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: (A) To an auditor or consultant hired by the employer to evaluate the safety and health program; (B) To the extent necessary for processing a claim for workers' compensation or other insurance benefits; or (C) 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. (15) Multiple Business Establishments. You must keep a separate OSHA 300 Log for each establishment that you expect to operate for one 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 seven (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 proprietorship 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. 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. (A) 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 five (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. (b) You must save your copies of the old OSHA 200 and 801 forms for five years following the year to which they relate and continue to provide access to the data as if these forms were the new forms. You do not need to update your old 200 and 801 forms. 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) Provide limited access to your injury and illness records for your employees and their representatives. (A) 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. (i) 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) 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. (A) 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 (b) Catastrophe -- 8 hours after occurrence or employer knowledge NOTE: You must report a fatality caused by a heart attack at work. 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. Report the following to the nearest Oregon OSHA field office (Portland, Salem, Bend, Eugene or Medford). (c) Overnight Hospitalization - 24 hours after occurrence or employer knowledge NOTE: Oregon OSHA Field Office locations, telephone and Fax numbers are: Chart. NOTE: Overnight hospitalization if for medical treatment only. Hospitalization for observation is not reportable, nor is emergency room treatment. See the definitions section for "catastrophe". NOTE: Do not report injuries resulting from motor vehicle accidents that happen on public streets, roads or highways unless it is in a construction work zone. NOTE: Report a fatality only if it occurs within thirty (30) days of the accident. (22) 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 four (4) business hours. (a) 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 & Tables referenced are available from the agency.] Stat. Auth.: ORS 654.025(2) & ORS 656.726(4) Stats. Implemented: ORS 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. 11-26-03 437-001-0740 Falsification or Failure to Keep and Post Records or Make Reports 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). 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, representation 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 six months, or both. Also, ORS 654.086(1)(e) provides for civil penalties for falsification of a document. 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; 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. 11-15-02 437-001-0742 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) Employer's Responsibilities: (a) The employer shall see that workers are properly instructed and supervised in the safe operation of any machinery, tools, equipment, process, or practice which they are authorized to use or apply. This rule shall not be construed to require a supervisor on every part of an operation nor to prohibit workers from working alone; (b) The employer shall 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 shall be responsible for providing the health hazard control measures necessary to protect the employees' health from harmful of hazardous conditions and for maintaining such control measures in good working order and in use; (d) Every employer shall 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. (2) Employee's Responsibilities: (a) Employees shall conduct their work in compliance with the safety rules contained in this code; (b) All injuries shall 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 shall be a worker's responsibility to abide by and perform the following requirements: (A) A worker shall not operate a machine unless guard or method of guarding is in good condition, working order, in place, and operative; (B) A worker shall stop the machine or moving parts and properly tag-out or lock-out 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 shall not remove guards or render methods of guarding inoperative except for the purpose of adjustment, oiling, repair, or the setting up of a new job; (D) Workers shall report to their supervisor any guard or method of guarding that is not properly adjusted or not accomplishing its intended function; (E) Workers shall 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) Worker shall 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 shall 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 shall 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 shall not work in unprotected, exposed, hazardous areas under floor openings; (g) Long or unwieldy articles shall 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 shall 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 shall be warned of the danger; (j) Before leaving a job, workers shall 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 shall 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 shall promptly install any safeguard or take any corrective measure indicated or found advisable; (b) At the request of authorized Department representatives, it shall be 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 shall preserve and mark for identification, materials, tools or equipment necessary to the proper investigation of an accident; (c) Any supervisors or persons in charge of work are held to be the agents of the employer in the discharge of their authorized duties, and are at all times responsible for: (A) The execution in a safe manner of the work under their supervision; and (B) The safe conduct of their crew while under their supervision; (C) The safety of all workers under their supervision. (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 shall 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 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 shall be discontinued while such abnormal conditions exist, or until adequate safety of workers is ensured. (7) Inspections: (a) All places of employment shall 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 shall 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, shall be kept. Stat. Auth.: ORS 654.025(2) & ORS 656.726(3) Stats. Implemented: ORS 654.001 - ORS 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; Renumbered 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) 437-001-0765 Rules for Workplace Safety Committees (1) Purpose. The purpose of a safety committee is to bring workers and management together in a non-adversarial, cooperative effort to promote safety and health in each workplace. A safety committee assists the employer and makes recommendations for change. (2) General. (a) Every public or private employer of 11 or more employees shall establish and administer a safety committee. (b) Every public or private employer of 10 or fewer employees shall establish and administer a safety committee if the employer: (A) Has a Lost Workday Case Incidence Rate (LWDCIR) in the top 10 percent of all rates for the employers in the same industry; or (B) The employer is not an agricultural employer and the workers' compensation premium classification assigned to the greatest portion of the payroll for the employer has a premium rate in the top 25 percent of premium rates for all classes as approved by the Director pursuant to ORS 737.320(3). (c) In making the determination of employment levels under sections (a) and (b) of this rule, the employer shall count all permanent, contract, temporary, and/or seasonal workers under the employer's direction and control, and shall base the number on peak employment. (d) Temporary services employers and labor contractors shall establish safety committees based upon the total number of workers over which the employer or contractor exercises direction and control. (e) Employers who hire only seasonal workers shall meet the intent of these rules by holding crew safety meetings prior to the commencement of work at each job site. Such meetings shall promote discussions of safety and health issues. All workers shall be informed of their rights to report workplace hazards, and shall be encouraged to make such reports during the meetings. (f) Employers in the logging industry may meet the intent of these rules by complying with OAR 437, division 7, Forest Activities. (3) Locations. (a) Safety committees shall be established at each of the employer's primary places of employment. For the purpose of these rules, a primary place of employment shall mean a major economic unit at a single geographic location, comprised of a building, group of buildings, and all surrounding facilities (Examples of primary places of employment would include a pulp or lumber mill, a manufacturing plant, a hospital complex, bank, a farm/ranch, a school district, or a state agency.) As a primary place of employment the location would have both management and workers present, would have control over a portion of a budget, and would have the ability to take action on the majority of the recommendations made by a safety committee. (b) An employer's auxiliary, mobile, or satellite locations, such as would be found in construction operations, trucking, branch or field offices, sales operations, or highly mobile activities, may be combined into a single, centralized committee. This centralized committee shall represent the safety and health concerns of all the locations. (c) In addition to locating safety committees at each primary place of employment, an employer with work locations which include fire service activities shall establish a Fire Service Safety Committee as required by OAR 437-002-0182(7) in 437, division 2/L, Oregon Rules for Fire Fighters. (4) Innovation. Upon application, the division may approve safety committees which are innovative or differ in form or function, when such committees meet the intent of these rules. (5) Safety Committee Formation and Membership. (a) The safety committees required by OAR 437-001-0765(2) shall: (A) Be composed of an equal number of employer and employee representatives. Employee representatives shall be volunteers or shall be elected by their peers unless there is a provision in their collective bargaining agreement that addresses the selection of employee representatives. When agreed upon by workers and management, the number of employees on the committee may be greater than the number of employer representatives. Seasonal workers shall not be counted for the purpose of determining the number of members who will serve on the committee. (B) Consist of: (i) No fewer than two members for each employer with twenty or less employees, or (ii) No fewer than four members for each employer with more than twenty employees. (C) Have a chairperson elected by the committee members. (b) Employee representatives attending safety committee meetings required by OAR 437-001-0765(2) or participating in safety committee instruction or training required by OAR 437-001-0765(7) shall be compensated by the employer at the regular hourly wage. (c) Employee representatives shall serve a continuous term of at least one (1) year. Length of membership shall be alternated or staggered so that at least one experienced member is always serving on the committee. (d) Reasonable efforts shall be made to ensure that committee members are representative of the major work activities of the firm. (6) Safety Committee Duties and Functions. (a) Management commitment to workplace health and safety. (A) The committee shall develop a written agenda for conducting safety committee meetings. The agenda shall prescribe the order in which committee business will be addressed during the meeting. (B) The safety committee shall hold regular meetings at least once a month except months when quarterly workplace safety inspections are made. This does not exclude other months from safety committee meetings if more frequent safety inspections are conducted. (C) Quarterly safety committee meetings may be substituted for monthly meetings where the committee's sole area of responsibility involves low hazard work environments such as offices. (D) Small farms of five or fewer full time employees may substitute quarterly meetings for monthly meetings during the farms' off season. The off season shall mean that period of time when only routine farm upkeep is being done. (b) Written records. (A) Minutes shall be made of each meeting which the employer shall review and maintain for three years for inspection by the Division. Copies of minutes shall be posted or made available for all employees and shall be sent to each committee member. (B) All reports, evaluations, and recommendations of the safety committee shall be made a part of the minutes of the safety committee meeting. (C) A reasonable time limit shall be established for the employer to respond in writing to all safety committee recommendations. (c) Employee involvement. (A) The committee shall establish a system to allow the members to obtain safety-related suggestions, reports of hazards, or other information directly from all persons involved in the operations of the workplace. The information obtained shall be reviewed at the next safety committee meeting, and shall be recorded in the minutes for review and necessary action by the employer. (d) Hazard assessment and control. (A) The safety committee shall assist the employer in evaluating the employer's accident and illness prevention program, and shall make written recommendations to improve the program where applicable. Additionally, the safety committee shall: (i) Establish procedures for workplace inspections by the safety committee inspection team to locate and identify safety and health hazards; (ii) Conduct workplace inspections at least quarterly; and (iii) Recommend to the employer how to eliminate hazards and unsafe work practices in the workplace; (B) The inspection team shall include employer and employee representatives and shall document in writing the location and identity of the hazards and make recommendations to the employer regarding correction of the hazards. (C) Quarterly inspections of satellite locations shall be conducted by the committee team or by a person designated at the location. (D) Mobile work sites or locations and activities which do not lend themselves to a quarterly schedule shall be inspected by a designated person as often as Oregon occupational safety and health rules require and/or the committee determines is necessary. (E) The person designated to carry out inspection activities at the locations identified in sections (C) and (D) of this rule shall be selected by the employer and shall receive training in hazard identification in the workplace. (e) Safety and health planning. The safety committee shall establish procedures for the review of all safety and health inspection reports made by the committee. Based on the results of the review, the committee shall make recommendations for improvement of the employer's accident and illness prevention program. (f) Accountability. The safety committee shall evaluate the employer's accountability system and make recommendations to implement supervisor and employee accountability for safety and health. (g) Accident investigation. The safety committee shall establish procedures for investigating all safety-related incidents including injury accidents, illnesses and deaths. This rule shall not be construed to require the committee to conduct the investigations. (7) Safety and Health Training and Instruction. (a) The following items shall be discussed with all safety committee members: (A) Safety committee purpose and operation; (B) OAR 437-001-0760 through 437-001-0765 and their application; and (C) Methods of conducting safety committee meetings. (b) Committee members shall have ready access to applicable Oregon Occupational Safety and Health Codes which apply to the particular establishment and verbal instructions regarding their use. (c) All safety committee members shall receive training based upon the type of business activity. At a minimum, members shall receive training regarding: (A) Hazard identification in the workplace; and (B) Principles regarding effective accident and incident investigations. (8) Effective Date. The effective date for OAR 437-001-0765 is March 1, 1991. 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 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 Farmworker Housing Tax Credits 437-001-0905 Purpose and Objectives (1) The rules of OAR 437-001-0905 through 437-001-0940 are established to define and carry out the provisions of ORS 315.164 through .167 as amended by 1995 Legislation (the Act), as they pertain to the Department of Consumer and Business Services ("Department"). The purpose of the program is to encourage the rehabilitation of existing housing and the construction or placement of additional seasonal or permanent housing for farm workers. The Department's objectives are to specify the beginning date for the filing of applications, how to acquire the form(s) for filing, define the information that is required, and to specify how the Department will consider, evaluate, and approve applications for farm worker housing projects that are ready to proceed in the current calendar year. (2) Individuals, as identified in ORS 316, or a corporation, as identified in ORS 317, who file applications and receive approval will be issued letters of credit approval to allow the individuals or corporations to claim a tax credit against Oregon taxes as provided in the Act. The letter of credit approval also certifies that approved projects fall within the annual cap on the total estimated eligible costs identified in ORS 315.167(4); and designates by its date of issuance the earliest tax year in which the tax credit may be claimed for a completed project. (3) The duty of administering the farm worker housing tax credit program and determining compliance with these rules and ORS 315.164-.167 is delegated from the Director of the Department to the Administrator of the Occupational Safety and Health Division (OR-OSHA) and his designees. The OR-OSHA Administrator may delegate any of these duties to the Deputy Administrator or other management staff. Stat. Auth.: ORS 654.025(2), ORS 656.726(3) & ORS 705.135 Stats. Implemented: ORS 315.164 - ORS 315.167 Hist: OSHA 1-1997, f. 1-31-97, cert. ef. 2-1-97; OSHA 10-1997, f. & cert. ef. 12-31-97 437-001-0910 Definitions All terms used in OAR 437-001-0905 through 437-001-0940 are as provided in the Act and as further specified in these rules: (1) "Application" means application form(s) and the attached information, prescribed by the Department in OAR 437-001-0915, and as the Department may specify in an Annual Notice, which have been signed by an Owner requesting approval of a project in a given year. (2) "Apply" means to complete an application and file it with the Department. (3) "Approval" means the Department, having considered and evaluated the information provided in the application, has reached a decision the application is appropriate for approval, and has issued a letter of credit approval. Applications shall be approved in chronological order until the entire cap is awarded. (4) "Cap" means the maximum amount of tax credits as set by the Legislature in ORS 315.167(4). (5) "Chronological Order" means after the Department announces the initial date that applications may be filed, all applications will be considered in the order filed. Because not all methods of filing can be fairly or equitably given a specific time of arrival on a given day, all applications filed on single day will be considered filed at the same time. Multiple applications filed on a given day will be considered and further evaluated to establish an order for processing based on the chronological order of the projected date of completion. Should this fail to establish a specific order, the remaining order will be based on the estimated eligible cost, with the lower request going first. Applications submitted before the initial application date will not be considered and will be returned. (6) "Condition of Habitability" means a condition that is in compliance with: (a) The applicable provisions of the state building code under ORS chapter 455 and the rules adopted thereunder; or (b) If determined on or before December 31, 1995, section 12 and 13, chapter 964, Oregon Laws 1989. (7) "Considered" means the application packages filed with the Department pursuant to ORS 315.167(2), these administrative rules shall be considered in chronological order. Non-compliant applications shall not be considered until and unless cured. (8) "Department" means the Department of Consumer and Business Services, State of Oregon. (9) "Eligible Costs" includes finance costs, construction costs, excavation costs, installation costs and permit costs but excludes land costs. (10) "Estimated Eligible Costs" are a forecast of the actual eligible costs, or a lesser amount the owner/taxpayer is requesting for approval for a specific project. A voluntary ceiling for the estimated eligible costs requested for large projects may be announced in the Annual Notice. (11) "Evaluate" means the Department may either directly or through agreements with others examine, judge, appraise or estimate the specific information provided in an application to reasonably assure the project is appropriate for approval, under the cap, for a given year. In the evaluation process the Department may determine the qualifying status of the taxpayer, the proposed project and the costs included in the estimates of eligible costs; applications must also include and will be evaluated on the readiness of the project to proceed, and the anticipated occupancy date. (12) "Filed with the Department" means applications sent by mail are filed on the date of the USPS postmark; applications sent electronically by facsimile (FAX) will be considered filed on the date printed out on Department devices on which they arrive; and, hand delivered applications are filed on the date they are stamped in at any OR-OSHA office of the Department. Applications submitted before the initial date applications may be filed will not be considered and will be returned. (13) "Firm Commitment of Financing" means an agreement to make funds available to a specific owner on a specific property and which will contain all of the terms and conditions that the Owner has to satisfy. Payment of a commitment fee by the Owner to the lending institution may be required as a condition precedent to issuance of such an agreement. (14) "Owner" is an individual, corporation, a nonprofit corporation, state or local government entity including but not limited to a housing authority, which may be a controlling general partner in a limited partnership, who holds legal title to the project and will develop and manage the project in accordance with the OAR, statutes, federal regulations and any other requirements as set forth by the Department. (15) "Project" means one or more units of housing which will be occupied or rented by farm workers and their immediate families. (16) "Rehabilitation" means to restore and reinstate a building to a Condition of Habitability. (17) "Relative" means a brother or sister (whether by the whole or by half blood), spouse, ancestor (whether by law or by blood), or lineal descendant of an individual. (18) "Seasonal Farm Worker" means any person who, for an agreed remuneration or rate of pay, performs temporary labor for another in the production of farm products or in the planting, cultivating or harvesting of seasonal agricultural crops or in the forestation or reforestation of lands, including but not limited to planting, transplanting, tubing, pre-commercial thinning and thinning of trees and seedlings, the clearing, piling and disposal of brush and slash and other related activities. (19) "Seasonal Farm Worker housing" means housing limited to occupancy by seasonal farm workers and their immediate families which is occupied no more than nine months of the year. (20) "Seasonal FARM WORKER housing project" means construction, installation or rehabilitation of seasonal FARM WORKER housing. (21) "Tenant" is a person or a renter (including any family members) who occupies or will occupy a unit in a Project. (22) "Year-round FARM WORKER housing" means housing: (a) Limited to occupancy by farm workers and their immediate families; (b) No dwelling unit of which is occupied by a relative of the owner or operator of the FARM WORKER housing; and (c) Consisting, if located in an exclusive farm use zone, of housing that is in compliance with any applicable local zoning ordinance and that is: (A) A manufactured dwelling, as that term is defined in ORS 446.003; or (B) Any other dwelling unit, if the project for which credit under this section is being claimed consists of the rehabilitation of existing FARM WORKER housing. (23) "Year-round FARM WORKER housing project" means construction, installation or rehabilitation of FARM WORKER housing. Stat. Auth.: ORS 654.025(2), ORS 656.726(3) & ORS 705.135 Stats. Implemented: ORS 315.164 - ORS 315.167 Hist: OSHA 1-1997, f. 1-31-97, cert. ef. 2-1-97; OSHA 10-1997, f. & cert. ef. 12-31-97 437-001-0915 Program Description and Application Requirements (1) The Department may approve applications for the Farm Worker Housing Tax Credit Program, solely for projects that provide housing for the exclusive use of farm workers and their families, subject to availability of Eligible Costs in any one year of the program. Relatives of the owner or operator may not occupy any dwelling unit. Applicants are encouraged to read ORS 315.164-.167, the Annual Notice, and the General Information regarding this program. This information will be provided along with application forms, upon request to: Farm Worker Housing Tax Credit Program OR-OSHA, DCBS 350 Winter Street N.E., Rm 430 Salem, Oregon 97310 (2) The Department reserves the right to establish the initial date on which applications may be filed in any year, the application form(s) and supporting documentation, and to establish evaluation criteria. The Department also reserves the right to request additional information and to request applicants with large projects to follow a voluntary ceiling on the estimated eligible costs included in their applications. (3) At the time an application may be filed, the Owner shall submit a written application for approval in the manner prescribed by the Department. The Application shall provide information, including, but not limited to: (a) Name, address, taxpayer identification number, and telephone number of the Owner; (b) Location of the proposed Farm Worker housing; (c) A description of the Project, including: (A) The type of housing (seasonal farm worker housing project, or year around farm worker housing project); (B) Number and type of housing units to be provided and the projected occupancy and square footage per unit. (d) An estimate of the eligible costs of the project, broken down by cost type, (note the Annual Notice may request that large projects voluntarily limit the amount of these costs requested in the application); and (e) Any other information as the Department may require, including but not limited to: (A) Information on the current zoning of the proposed site, including at a minimum, an accompanying letter signed by the respective community development or planning agency indicating the current zoning designation and that the proposed project complies with the allowable uses for the zone designation, to confirm both the eligibility of the project proposed and its ability to proceed; (B) Information on the source of funds, including at a minimum an accompanying letter or form specifying the sources of funds, and for funds not from sources in the owners name, a firm commitment of financing for all outside sources of funds; (C) Information on the readiness of the project to proceed to construction in the current year: (i) Projected date on-site construction activity will begin or permits will be secured; and (ii) The projected construction time. (D) Information on the projected occupancy date; (E) Information on the projected life of the project for farm worker housing purposes; (F) A letter or forms committing to the timely completion of the project, including at a minimum a commitment, by signing of the application form, that the project will be completed and ready for occupancy in the calendar year of the approval; or a specific letter of commitment stating the project will proceed to construction in the calendar year of approval and will be completed and ready for occupancy during the following calendar year; and (G) Any other information the Department may specify in an Annual Notice. (4) Once an application has been filed, an Owner may begin construction and incur costs at their own risk. Projects that have started construction after an application has been filed and have not been awarded tax credits will not be eligible for future tax credits after December 31 of the year construction began. Stat. Auth.: ORS 654.025(2), ORS 656.726(3) & ORS 705.135 Stats. Implemented: ORS 315.164 - ORS 315.167 Hist: OSHA 1-1997, f. 1-31-97, cert. ef. 2-1-97; OSHA 10-1997, f. & cert. ef. 12-31-97 437-001-0920 Filing, Consideration and Evaluation of Applications (1) Applications may be filed after 8:00 am, January 2 in a given year. The Department shall consider applications in chronological order. The Department shall evaluate, or cause an evaluation to be conducted of all applications and decline/approve/partially approve up to the cap or approve for standby, each application within 60 calendar days of filing. (2) The Department's evaluation of applications for approval, may include, but is not limited to, the following criteria: (a) Completeness, level of detail and accuracy of the information included in the application (see 437-001-0910 Definitions, and 437-001-0915 Application requirements); (b) The Owner's readiness to proceed as evidenced by: (A) Estimated time to complete the project following approval; (B) Projected date the project will be completed and ready for occupancy. (c) Financial feasibility as evidenced by the existence of funds for the project including: (A) Sources of funds for the project; (B) Firm commitments of financing for fund sources not in the owner's name. (d) Other criteria as may be established in the Application form(s) and announced in the Annual Notice. (3) The Department may: (a) Return applications determined in the evaluation process to not include specific or substantial information as not filed; (b) Request the owner to provide within 15 calendar days any minor information deemed missing, and if such information is not timely returned, the application may be returned as not filed; and (c) Upon determining applications have successfully met the evaluation criteria, the applications will be further processed for approval in the chronological order filed. Stat. Auth.: ORS 654.025(2), ORS 656.726(3) & ORS 705.135 Stats. Implemented: ORS 315.164 - ORS 315.167 Hist: OSHA 1-1997, f. 1-31-97, cert. ef. 2-1-97; OSHA 10-1997, f. & cert. ef. 12-31-97 437-001-0925 (RESERVED) Stat. Auth.: ORS 654.025(2), ORS 656.726(3) & ORS 705.135 Stats. Implemented: ORS 315.164 - ORS 315.167 Hist: OSHA 1-1997, f. 1-31-97, cert. ef. 2-1-97; OSHA 10-1997, f. & cert. ef. 12-31-97 437-001-0930 Standby Applications (1) Applications filed under 437-001-0905 through 437-001-0930 requesting approval for estimated eligible cost amounts in excess of the eligible cost cap must be declined unless the owner elects to reduce the estimated eligible cost to an amount that would not exceed the cap, or asks to be placed on a standby list. (2) The Department will maintain applications on the standby list in the chronological order filed if they are otherwise determined in the evaluation process to be appropriate for approval. (3) When for any reason estimated eligible costs amounts become available after the cap was initially reached in a given year, a standby application will be selected for approval of tax credits based on the earliest filing date, and the Department shall notify the applicant and allow a reasonable time for the applicant to update their Application to reflect current conditions. (4) All unfunded standby Applications shall expire on December 31 of the current calender year. If an application expires, a new application must be submitted for the next calender year. If construction began in the calender year the application was placed on standby, then the project will be unable to apply for credits in the next calender year. Stat. Auth.: ORS 654.025(2), ORS 656.726(3) & ORS 705.135 Stats. Implemented: ORS 315.164 - ORS 315.167 Hist: OSHA 1-1997, f. 1-31-97, cert. ef. 2-1-97; OSHA 10-1997, f. & cert. ef. 12-31-97 437-001-0935 Approval of Eligible Projects When the requirements of ORS 315.164 -- 167, OAR 437-001-0905 through 437-001-0930 and any requirement announced in an Annual Notice are met the Department shall provide a letter of tax credit approval to the Owner/taxpayer on the application. The letter of credit approval indicates: (1) A tax credit may be claimed based on the estimated eligible costs specified in the letter, or actual costs, whichever are lower, following the completion of the project and a pre-occupancy inspection. (2) That other criteria apply and must be met for the full term of the tax credit to assure continued eligibility for claiming the tax credit by the owner, taxpayer, or finance institution. (3) The estimated eligible costs for all approved projects comply with the Cap. Stat. Auth.: ORS 654.025(2), ORS 656.726(3) & ORS 705.135 Stats. Implemented: ORS 315.164 - ORS 315.167 Hist: OSHA 1-1997, f. 1-31-97, cert. ef. 2-1-97; OSHA 10-1997, f. & cert. ef. 12-31-97 437-001-0940 Monitoring If, after the Certification and during the term the tax credits are being used, the Owner or operator of a Project is found to be out of compliance with the requirements of the statute, ORS 315.164 through 315.167, these administrative rules, OAR 437-001-0905 through 437-001-0940, or the commitments contained in the Application, the Department shall promptly notify the Department of Revenue, who will notify the owner or taxpayer and take any appropriate action based on Department of Revenue laws, rules and procedures. Stat. Auth.: ORS 654.025(2), ORS 656.726(3) & ORS 705.135 Stats. Implemented: ORS 315.164 - ORS 315.167 Hist.: OSHA 1-1997, f. 1-31-97, cert. ef. 2-1-97; OSHA 10-1997, f. & cert. ef. 12-31-97 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 guaranty contracts 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 illnesses 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) & ORS 656.726(3) Stats. Implemented: ORS 654.001 - ORS 654.295 Hist.: APD 21-1988, f. & cert. ef. 12-27-88; Administrative Correction 8-5-97; OSHA 7-1999, f. & cert. ef. 7-15-99 437-001-1020 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 shall comply with OAR 437-001-1020(1) at the time of application for the authority to issue guaranty contracts 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) & 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; Administrative Correction 8-5-97; OSHA 7-1999, f. & cert. ef. 7-15-99 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 --------------------------------------------------------------------------------