OSHA Revises National Emphasis Program, and Updates Interim Enforcement Response Plan for COVID-19

Seyfarth Synopsis: OSHA has just revised its National Emphasis Program (NEP) for COVID-19. The NEP was first issued on March 12, 2021, to focus on companies that put the largest number of workers at serious risk of contracting the coronavirus, and on employers that “engage in retaliation against employees who complain about unsafe or unhealthful conditions or exercise other rights under the Occupational Safety and Health Act.”

The now revised NEP (DIR 2021-03 (CPL 03), adjusts the targeted industries to those most at risk for COVID-19 exposure, but still includes healthcare and non-healthcare, such as meat and poultry processing. The revised NEP also removes an appendix that provided a list of Secondary Target Industries for the former COVID-19 NEP. For inspections in healthcare, the revised NEP refers compliance safety and health officers (CSHOs) to the new directive, DIR 2021-02 (CPL 02), Inspection Procedures for the COVID-19 Emergency Temporary Standard, issued on June 28, 2021.

Inspections in non-healthcare establishments will follow procedures outlined in the Updated Interim Enforcement Response Plan published July 7, 2021. The updated interim enforcement response plan (IERP) replaces the memorandum dated March 12, 2021. Updates in the July 2021 IERP include:

  • Enforcing protections for workers in non-healthcare industries who are unvaccinated or not fully vaccinated;
  • Where respirator supplies and services are readily available, OSHA will stop exercising enforcement discretion for temporary noncompliance with the Respiratory Protection standard based on employers’ claims of supply shortages due to the COVID-19 pandemic;
  • OSHA will no longer exercise enforcement discretion for the same requirements in other health standards, where full compliance may have been difficult for some non-healthcare employers due to the COVID-19 pandemic;
  • Updated instructions and guidance for OSHA area offices and CSHOs for handling COVID-19-related complaints, referrals and severe illness reports;
  • Ensuring workers are protected from retaliation; and
  • References to the revised NEP for COVID-19.

The goals of the IERP are to identify exposures to COVID-19 hazards, ensure appropriate control measures are implemented, and address violations of OSHA standards and the General Duty Clause. OSHA indicates that the updated IERP will remain in effect until further notice and is intended to be time-limited to the current COVID-19 public health crisis.

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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