KH OSHA Law Update: OSHA Announces National Emphasis Program for COVID-19 and Updated Interim Enforcement Response Plan
On March 12, 2021, OSHA released its National Emphasis Program (NEP) for COVID-19 and Updated its Interim Enforcement Response Plan. Employers in industries with high COVID-19 exposure risks should expect to see increased inspections from OSHA.
National Emphasis Program
The NEP is a temporary program in which the directorate of enforcement programs set forth its direction to focus OSHA’s resources on addressing COVID-19 in the workplace and inspect establishments with workers that have increased exposure to COVID-19. OSHA directed regional offices to conduct targeted inspections with the goal of COVID-19 inspections making up 5% of the region’s total assigned inspection goal (1,600 inspections OSHA-wide). The agency also added provisions for preventing retaliation against employees. OSHA will begin targeted/programmed inspections under this emphasis program beginning on March 26, 2021.
The NEP targets industries where OSHA data shows the highest amount of workers expected to perform tasks that associated with exposure to COVID-19. OSHA has identified certain industries as primary target industries, including healthcare, meat and poultry processing, grocery stores, restaurants, discount department stores, warehousing and storage, and correctional institutions. The agency identified secondary target industries that are non-healthcare essential workers (identified by the Cybersecurity and Infrastructure Security Agency, CISA) likely to have the highest frequency of close contact exposures. These industries include (but are not limited to) agriculture, construction of buildings, food and beverage manufacturing, asphalt paving, chemical manufacturing, plastics manufacturing, transportation equipment, and electronics manufacturing.
Area Offices will generate two “Master Lists” of establishments: Master List 1 includes establishments in the primary and secondary target industries, and Master List 2 is a subset of List 1 of establishments with elevated illness rates. Area Offices will use either list or a combination of the two lists to meet their inspection goals. OSHA will prioritize fatality inspections related to COVID-19 and then other unprogrammed inspections alleging employee exposure to COVID-19 hazards.
The NEP is set to expire in March 12, 2022.
Interim Enforcement Response Plan
OSHA also released an updated interim enforcement response plan for COVID-19, which provides instructions to area offices and compliance safety and health officers (CSHOs) for responding to COVID-19-related complaints and referrals.
OSHA directs area offices to prioritize enforcement and focus on employers that are “not making good faith efforts to protect workers.” Pursuant to the NEP, area offices will prioritize COVID-19-related inspections involving fatalities or multiple hospitalizations due to occupational exposures to COVID-19. CSHOs will perform on-site inspections to identify exposures to COVID-19 hazards, ensure control measures are implemented, and address violations of OSHA standards and the General Duty Clause.
In the interim plan, OSHA directs CSHOs to conduct in-person interviews when necessary and safe but will also use phone and video conferencing to reduce potential COVID-19 exposures. OSHA also directs CSHOs to minimize in-person meetings and encourage employers to submit documents electronically. Further, CSHOs will be equipped with appropriate PPE when performing on-site inspections.
OSHA also includes sample employer letters for COVID-19 complaints, sample hazard alert letters for COVID-19 inspections, and sample alleged violation descriptions (AVD) for citing the General Duty Clause. Of note, the sample AVD can provide employers with insight as to what CSHOs will look for in issuing citations for alleged violations of the General Duty Clause. They include alleged violation descriptions for failure to deploy adequate engineering controls for droplets and aerosol transmission and inadequate training for employees.
For more information, contact Keller and Heckman’s OSHA team.