On March 12, 2021, the Occupational Safety and Health Administration issued a National Emphasis Program (“NEP”), signaling a renewed focus on COVID-19 under the Biden Administration. A NEP is a temporary program that focuses OSHA's resources on particular hazards and high-hazard industries based on an evaluation of inspection data, injury and illness data, National Institute for Occupational Safety and Health (NIOSH) reports, peer-reviewed literature, inspection findings, and other available information sources. The recently issued NEP is viewed as a response to President Biden’s Executive Order in January, requiring that OSHA “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.”
Consistent with President Biden’s directive, the newly issued NEP seeks to 1) protect employees in high-hazard industries from exposure to COVID-19, and 2) ensure that workers are protected from retaliation from reporting safety hazards related to the virus. The NEP endeavors to achieve these goals through “a combination of inspection targeting, outreach to employers, and compliance assistance.” The NEP instructs each of OSHA’s 10 regions to perform a high percentage of COVID-19 inspections (at least five percent of the region’s total assigned inspection goal), and to focus on workplace exposure to COVID-19 in critical industries (such as healthcare) until further notice. Area OSHA offices are instructed to begin targeted inspections pursuant to the NEP, as detailed below, no earlier than March 26, 2021.
The NEP assigns three tiers of priority to COVID-related inspections. First, OSHA will prioritize fatality inspections related to COVID-19 and other un-programmed inspections alleging employee exposure to COVID-19 related hazards. Next, OSHA will prioritize follow-up inspections, designed to “ensure abatement and to monitor the effectiveness of OSHA’s enforcement and guidance efforts related to COVID-19 hazards.” In selecting worksites for follow-up inspections, OSHA will prioritize 1) establishments that were previously inspected as a result of a COVID-19-related fatality and cited, 2) establishments that received deferred violations related to COVID-19 (instances where a violation was noted during inspection, but not cited, based on the employer’s good faith efforts at compliance), and 3) establishments that received serious and other-then-serious violations related to COVID-19 hazards.
Finally, where both un-programmed and follow-up COVID-19-related inspections do not enable offices to meet the goals of the NEP, programmed inspections may take priority. For programmed inspections, the NEP prioritizes establishments in enumerated high-risk industries, as well as those with an elevated illness rate as indicated by the employer’s injury and illness reporting (OSHA form 300A data). Appendix A to the NEP lists “Primary Target Industries,” whereas Appendix B lists several “Secondary Target Industries.” “Primary Target Industries” include those inside and outside of healthcare that have been particularly prone to employee exposure, including ambulance services, dentists offices, nursing care facilities, meat and poultry processing, supermarkets and grocery stores, general warehousing, and restaurants, amongst others. “Secondary Target Industries” are those “deemed essential to operations that maintain critical business operations or would otherwise help to maintain a healthy work environment and are likely to have exposures to COVID-19.” These include building construction, food and beverage manufacturing, transit systems, and many businesses in manufacturing and other industries.
Concerning whistleblower protections, the NEP reiterates that workers complaining of COVID-19 exposure or reporting injuries/illnesses may be covered under one or more whistleblower protection statutes, and requires that the area OSHA offices refer complaints of retaliation to the Regional Whistleblower Protection Program. The NEP also requires that, during inspections related to COVID-19, inspectors “inform workers of their right to file a whistleblower complaint if they experience retaliation for providing assistance to OSHA during an inspection, filing a safety and health complaint with OSHA, reporting a work-related injury or illness, or complaining about SARSCoV-2 exposure or any other workplace hazards to management.” The potential whistleblower protections related to COVID-19 under Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) were previously detailed here.
Finally, the NEP confirms earlier guidance that the OSH Act’s General Duty Clause will require employers to take measures to protect employees from COVID-19 in the absence of OSHA standards tailored specifically to the health pandemic. A General Duty Clause violation generally requires proof that a “recognized” hazard likely to cause death or serious physical harm was present at the worksite, and that feasible means to eliminate or materially reduce the hazard existed. Notably, the NEP specifically mentions that “[t]he most current CDC recommendations/guidelines at the time of employee exposure relating to COVID-19 should be consulted as one source of evidence of hazard recognition and potential feasible methods of abatement.”
Given the current lack of an emergency temporary COVID-19 standard from OSHA, guidance from the CDC and state/local health departments continues to be the primary source of guidance for employers seeking to operate in compliance with the law. Moving forward, employers should continue to adhere to guidance issued by the CDC and state/local authorities, and ensure implementation of a COVID-19 prevention program that describes safety measures consistent with this guidance. Employers should also be on the lookout for emergency temporary standards related to COVID-19 in the coming weeks, notwithstanding that the March 15 deadline imposed by President Biden for OSHA to consider and issue such standards has come and gone. Recent reports indicate that OSHA has provided a draft emergency temporary standard to the White House for review, and the standard could become effective immediately with little advance notice.
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