OSHA has launched a national emphasis program to protect high-risk workers from COVID-19 hazards. The program also prioritizes for OSHA inspection employers that retaliate against workers who complain about unsafe conditions.
According to OSHA Deputy Assistant Secretary Jim Frederick, “This deadly pandemic has taken a staggering toll on U.S. workers and their families. We have a moral obligation to do what we can to protect workers, especially for the many who have no other protection. This program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure.”
What is an NEP?
A national emphasis program, or NEP, is a temporary OSHA enforcement initiative that focuses OSHA’s resources on particular hazards and high-hazard industries. OSHA determines the need for and propriety of an NEP using inspection data, injury and illness data, National Institute for Occupational Safety and Health (NIOSH) reports, peer-reviewed literature, analysis of inspection findings, and other available information sources.
When does the COVID-19 NEP take effect?
The COVID-19 NEP is effective immediately, and OSHA is foregoing the typical 90-day waiting period before initiating inspections under it. Per OSHA, the COVID-19 NEP will remain in effect for up to one year, though the agency may amend or cancel the program as the pandemic subsides.
Who will be targeted?
The 35-page NEP document provides direction to OSHA Area Offices on how to select workplaces for inspection. Industries targeted for NEP inspections include, but are not limited to:
- Healthcare, including hospitals, doctors’ and dentists’ offices, long-term care facilities, and home healthcare services;
- Grocery and big box stores;
- Temporary staffing services;
- Full-service and fast-food restaurants;
- Food and beverage manufacturing;
- Critical manufacturing, including paper, chemicals, plastics, and metals.
The COVID-19 NEP will include some follow-up inspections of worksites that were previously inspected in 2020.
How will the COVID-19 NEP work?
The COVID-19 NEP marks OSHA’s return to onsite workplace inspections. OSHA has updated its Interim Enforcement Plan for COVID-19 to prioritize the use of onsite inspections where practical, or a combination of onsite and remote methods. The updated plan replaces a prior May 26, 2020 memorandum which directed OSHA Area Offices to conduct inspections remotely given the risk of infection and limitations on available personal protective equipment. The new Interim Enforcement Response Plan will take effect on March 18 and remain in effect until further notice.
OSHA has committed that its compliance safety and health officers (CSHOs), the “boots on the ground” for the agency’s inspection and enforcement efforts, will have all necessary protective equipment to conduct onsite inspections. As part of OSHA’s anti-retaliation campaign, CSHOs will be verbally advising employees of their rights, distributing anti-retaliation information during inspections, and referring any allegations of retaliation to the agency’s whistleblower protection program.
I’m a public sector employer. Do I need to worry about this OSHA NEP?
While the OSHA NEP applies to private-sector employers only, public sector employers including school districts should be prepared. Illinois public sector employers are covered by the Illinois Occupational Safety and Health Act under the federal OSH Act’s “state plan” provisions. Illinois OSHA adopts the substantive federal OSHA safety and health standards. Though OSHA is not requiring state plan states to adopt the new COVID-19 NEP, the agency “strongly encourages” state plan states to do so, and state plan states are required to notify federal OSHA whether or not they intend to adopt the COVID-19 NEP by May 11.
I’m not in a high-risk industry, so this NEP doesn’t affect me, right?
While employers that are not among the identified high-risk industries may not be subject to the COVID-19 NEP, as a practical matter, all OSHA-covered employers have an increased risk of inspection. President Biden has committed to doubling the CSHO ranks, and even without an NEP, more CSHOs mean more inspections, virtual or otherwise. With the NEP and updated Enforcement Response Plan authorizing the resumption of onsite inspections, employers can expect that the period of hazard alert letters and desk audits is over. CSHOs will be out in the field and at employers’ doors.
What can Illinois employers do to prepare?
Employers should strongly consider the following proactive steps before OSHA comes knocking:
- As previously reported, OSHA recommends that employers develop and implement a COVID-19 prevention program and train employees on its requirements. With OSHA, an ounce of prevention is indeed worth a pound of cure.
- Identify a manager or administrator to deal with OSHA so that there is a single point of contact with the agency.
- Consult with workplace safety counsel. The CSHO will not tell an employer this, but employers have the right to have legal counsel present during an inspection, and the employer can ask the CSHO to wait a reasonable amount of time (typically an hour or less) for counsel to arrive.