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(continued)

(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, exceptfor the day on which the injury occurred or the illness began. (continued)