OSHA Launches a COVID-19 National Emphasis Program

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On March 12, 2021, the Occupational Safety and Health Administration (OSHA) launched a National Emphasis Program (NEP) that signaled a new enforcement agenda, targeting establishments in industries that have an increased potential for employee exposure to the Coronavirus 2019 (COVID-19) disease, including healthcare institutions.  NEPs are temporary programs that focus OSHA’s resources on particular hazards and designated high-hazard industries.   This NEP advises that OSHA will use targeted inspections, outreach, and compliance assistance to identify and reduce or eliminate COVID-19 exposures in the workplace.

The COVID-19 NEP also includes an added emphasis on OSHA anti-retaliation provisions.  OSHA will distribute anti-retaliation information during inspections and outreach opportunities, and will  promptly refer allegations of retaliation to its Whistleblower Protection Program.

The NEP provides a formalized structure for OSHA to implement inspections, including unprogrammed, programmed, and follow-up inspections, in workplaces where employees have a high frequency of potential COVID-19 exposures.  Since the start of the pandemic, OSHA has handled most enforcement work remotely, without in-person inspections.  Under the NEP, more inspections will involve on-site visits.

Under the NEP, OSHA will place the highest priority on fatality inspections related to COVID-19 and then to other unprogrammed inspections alleging employee exposure to COVID-19 related hazards.  OSHA anticipates that the majority of the inspections will continue to occur in healthcare based on current OSHA enforcement data showing higher COVID-19-related complaints, referrals and severe incident reports at healthcare worksites.

To ensure abatement and to monitor the effectiveness of OSHA’s enforcement and guidance efforts, OSHA will include certain follow-up inspections as part of the targeting strategy.  OSHA will also use programmed inspection in high-hazard industries.  In addition to healthcare facilities, primary target industries for the COVID-19 NEP include ambulance services, continuing care retirement facilities, and assisted living facilities.  Targeted non-healthcare industries include grocery stores, general warehousing and storage facilities, restaurants, and correctional institutions.  Supplemental industries that OSHA also may look at more closely are those deemed essential to critical infrastructure, which include manufacturing and transit systems.

OSHA has also issued an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) to prioritize the use of on-site workplace inspections where practical, or a combination of on-site and remote methods.  This reflects the concerns raised in the February 22, 2021 Office of Inspector General’s report on OSHA activity during the pandemic, which critiqued the agency’s handling of OSHA complaints and investigations during the COVID-19 pandemic, focusing in part on the inhibiting impact of remote investigations, particularly in light of the heightened number of complaints received since March 2020.  For example, in 2020 OSHA received 15% more complaints than during a similar period in 2019, but performed 50% fewer inspections.  On March 18, 2021, OSHA will rescind its earlier May 26, 2020 Interim Enforcement Response Plan on this topic and the new guidance will go into effect until further notice.  The agency is also expected to issue a new workplace Emergency Temporary Standard for COVID-19 this week, in accordance with President Biden’s January 21, 2021 Executive Order.

To assess the effectiveness of this NEP, the Directorate of Enforcement Programs will review the program within six months. OSHA strongly encourages State Plans to adopt this NEP, but does not require identical adoption.

All employers, particularly those in what OSHA considers to be high-risk industries, should be prepared for the heightened OSHA enforcement activity related to COVID-19 exposures.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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