It is perhaps not a surprise to anyone familiar with e-commerce and the corresponding infrastructure that was developed to deliver all those packages, but according to the Occupational Safety and Health Administration (OSHA), from January 2011 to December 2021, the warehousing and distribution centers industry experienced a massive growth in employment, increasing from 668,900 to 1,713,900 employees. OSHA also states that from 2017 to 2021, “the five-year average incidence rate of nonfatal occupational injuries and illnesses and the average Days Away Restricted or Transferred (DART) rate in establishments associated with warehousing and distribution center operations, mail processing and distribution centers, couriers/express delivery services, and local messengers and local delivery industries, were significantly higher than the baseline private general industry rates.”
- OSHA released a national emphasis program (NEP) focusing on the warehousing and distribution center industry in response to massive employment growth and high injury/illness and DART rates.
- The NEP also targets certain “high injury retail establishments.”
- The first ninety days following the publication of the NEP are to be used for outreach and education on the program. Inspection activity will begin thereafter.
- The NEP will expire three years after the effective date of July 13, 2023.
Given these statistics, it also may not come as a surprise that on July 13, 2023, OSHA announced a national emphasis program directed at warehousing and distribution center operations. According to Assistant Secretary of Labor for Occupational Safety and Health Doug Parker, “This emphasis program allows OSHA to direct resources to establishments where evidence shows employers must be more intentional in addressing the root causes of worker injuries and align their business practices with the goal to ensure worker health and safety.”
Prior to this NEP, OSHA’s Regions 2 and 3 had introduced similar regional emphasis programs (REP). The REPs covered the federal OSHA states in those regions, which include Delaware, the District of Columbia, New Jersey, New York, Pennsylvania, and West Virginia, as well as the U.S. Virgin Islands, but were nowhere near as comprehensive as this NEP. As a result, employers can expect a significant increase in enforcement efforts directed at the covered industry sectors.
The first ninety days following the publication of the NEP are to be used for outreach and education on the NEP. Inspection activity will begin thereafter. The NEP will terminate three years after its effective date. Substantially similar REPs and local emphasis programs will be phased out after the NEP’s ninety-day outreach period ends. State plans have been instructed to either adopt the federal NEP or develop their own programs, which “must be at least as effective.”
According to the NEP, Bureau of Labor Statistics (BLS) statistics show that injury and illness rates in warehousing and distribution centers, mail/postal processing and distribution centers, parcel delivery/courier services, and “high injury rate retail establishments” are “significantly higher than for other establishments.” “High injury rate retail establishments” include employers with the following North American Industry Classification System (NAICS) codes: Home centers – 444110; Hardware stores – 444130; Other building material dealers – 444190; Supermarkets and other grocery (except convenience) stores – 445110; and Warehouse clubs and supercenters – 452311.
The NEP targets these types of establishments, and, with the exception of high-injury-rate retail establishments, inspections will be comprehensive and focus on hazards common to those industries, including powered industrial vehicle operations, material handling/storage operations, walking-working surfaces, means of egress, and fire protection. Heat and ergonomic hazards are also to be considered during such inspections. High-injury-rate retail establishment inspections will focus on loading and storage areas, but they can be expanded if “there is evidence that violative conditions may be found in other areas” of those establishments.
The national OSHA office will generate lists of establishments the area offices are to inspect, and the area offices can either inspect all of the establishments identified in any order or create a subset of the list provided, so long as they inspect the subset in the order provided. The precise reasoning behind this instruction is unclear, but it may be that the lists are generated and prioritized according to injury and illness and/or DART rates. Inspections under the NEP will not include deliveries of packages or postal articles to residences and businesses.
There is overlap between this NEP and the NEP for outdoor and indoor heat-related hazards, and inspections under both programs can take place simultaneously. OSHA will assess ergonomic hazards based on a review of the operations and the employer’s injury and illness records. If ergonomic hazards are detected, in addition to a safety inspection, a health inspection will be opened.
So what will be the impact of this NEP for employers in the designated industries? It will no doubt lead to increased inspections and the possibility of citations and penalties. Employers in these industries may want to act now during the ninety-day outreach period by conducting reviews of their safety and health programs and educating their safety personnel and managers on what to do if OSHA arrives for an inspection.
Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will provide updates on the Trucking & Logistics and Workplace Safety and Health blogs as additional information becomes available.