Among other actions, on March 12, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued a new National Emphasis Program (NEP), effective immediately, prioritizing inspections for “high-hazard industries or activities” where there is a hazard for contracting COVID-19 at the workplace. The NEP, published alongside an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (ERP) is a result of President Biden’s inauguration day Executive Order in which he directed OSHA to focus its enforcement on COVID-19 efforts. President Biden’s executive order called for OSHA to consider implementing a potential nationwide Emergency Temporary Standard (ETS). The NEP and ERP suggest that an ETS may be issued in the future by stating that if an ETS is issued, its requirements will take precedence over OSHA’s currently-available standards.

The stated goal of the NEP is to “significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures and therefore, controlling the health hazards associated with such exposures. This goal will be accomplished by a combination of inspection targeting, outreach to employers, and compliance assistance…”

To achieve this goal, OSHA is utilizing a phased approach, with highest priority given to fatality inspections related to COVID-19 and then to other unprogrammed inspections alleging employee exposure to COVID-19 related hazards. (According to OSHA’s Field Operations Manual, programmed inspections occur when an inspection is chosen due to objective or neutral selection criteria, such as national scheduling plans, whereas unprogrammed inspections are scheduled in response to alleged hazardous working conditions identified at a specific worksite.) The priority is set forth as follows:

• Unprogrammed inspections (regardless if covered industry as set forth in the NEP). The NEP prioritizes the inspection of fatalities, complaints, and referrals based on “allegations [made to OSHA] of potential worker exposures to SARS-CoV-2 (g., insufficient controls in place such as PPE), or involving workers suspected or confirmed positive for COVID-19, or with symptoms of exposure to the virus (e.g., fever or chills, shortness of breath or difficulty breathing).” Such prioritization extends to industries and workplaces beyond the industries specifically mentioned by the NEP.
• Follow-up inspections. The NEP provides that OSHA is to conduct follow-up inspections for establishments that were previously inspected as a result of a COVID-19-related fatality and cited. Specifically, OSHA will use discretion in selecting establishments for follow-up inspections where any of the following applies: (1) the establishment previously received an other-than-serious recordkeeping and reporting violation(s); (2) a previously inspected employer allegedly continues to expose employees to SARS-CoV-2, or has not fully and properly implemented required engineering controls, work practices, and respiratory protection noted in the abatement certification within the time allotted; or (3) if there are any violations for which abatement has not been provided.
• Programmed inspections. After conducting unprogrammed inspections and follow-up inspections, the NEP includes two lists of industries which should be prioritized, including, but not limited to: healthcare, including hospitals, doctors’ and dentists’ offices, long-term care facilities, and home healthcare services; construction; meat and poultry processing plants; restaurants; and supermarkets and other grocery stores.

When conducting an inspection, a compliance safety and health officer (CSHO) must begin with a review of the employer’s citation and fatality / accident history and review the establishment’s injury and illness logs (OSHA 3000 and OSHA300A) for 2020 and 2021 to identify work-related cases of COVID-19. Then, the CSHO may verify the employer’s assertions regarding workplace conditions or possible existence of worker exposures to COVID-19 by interviewing employees on-site. If, after a review of the logs and employee interviews, it is determined that there is no positive or suspected COVID-19 exposure, the NEP directs the CSHO not to proceed with the inspection. Importantly, however, if the inspection was unprogrammed or is a follow-up inspection (pursuant to the phased approach detailed above), then the NEP directs the CSHO to proceed with the inspection. When conducting the inspection, any health hazard or safety violation observed during the inspection must be addressed and cited by the CSHO. Troublingly, the NEP states that “inspections should be conducted in a manner to achieve expeditious issuance of COVID-19 related citations and abatement.”

Notably, before conducting any walkaround inspection, the CSHO is expected to have an opening conference in which the CSHO speaks with the persons responsible for implementing COVID-19 protections or occupational health hazard controls. After the opening conference and before any walkaround, the CSHO will review a list of specific programs and documents, including a written safety and health plan, procedures for hazard assessment, protocols for PPE use, implementation of measures for physical distancing, implementation of measures for the use of face coverings, and medical records relating to exposure incidents, training records. Union officials are permitted to “accompany CSHOs during the inspection.”

Finally, the NEP states that any workers requesting inspections, complaining of exposure, or reporting injuries or illnesses or retaliation may be covered by whistleblower laws and directs Area Officers to submit a referral to the Regional Whistleblower Protection Program. As retaliation is an area of focus for the Biden administration as set forth in his Executive Order (“launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles”), enforcement of retaliation claims is likely to increase. Employers should take care not to take actions that are retaliatory toward employees who raise health or safety complaints.

Inspections under the NEP can begin as soon as March 26, 2021. Significantly, the NEP only applies by its terms to states that do not have their own OSHA state plans. States with state plans are required, within 60 days, to submit a notice of intent indicating whether it intends to adopt the NEP. OSHA “strongly encourages” states to adopt the NEP, and states that do not could potentially be forced by OSHA to adopt the NEP because state plans must be “at least as effective” as the federal OSHA program.

OSHA-covered employers (even those not specifically targeted by the NEP) should take certain action in light of this NEP. Specifically, OSHA-covered employers should consider actions such as:

• Review the NEP to understand its implications and effect on an employer’s workplace (including whether an employer is within one of the targeted industries);
• Update COVID-19 protocols and safety measures taken to ensure compliance with current guidance from federal, state, and local sources, including, but not limited to:
  • Written COVID-19 safety and health plans
  • Procedures for hazard assessment
  • Procedures for PPE assessment and use
  • Worker protection actions (engineering controls, administrative controls, work practices and PPE) and worker training
  • Injury/illness recordkeeping and reporting procedures
• In particular, review and comply with OSHA’s January 29, 2021 guidance on mitigating and preventing the spread of COVID-19 in the workplace, which is referenced in the NEP and ERP, as well as any industry-specific guidance or mandatory state or local safety requirements;
• Review OSHA logs and safety records to identify indications of work-related COVID-19 issues at a particular facility or work-site and be prepared to share those records during an inspection; and
• Conduct audits to ensure employees are following the COVID-19 safety measures in place.