In what is likely the final predicate for issuing a COVID-19 emergency temporary standard (ETS), on March 12, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued a new National Emphasis Program (NEP) “targeting specific high-hazard industries or activities” in which there is a “hazard of contracting SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2), the cause of COVID-19.” The NEP also “includes an added focus to ensure that workers are protected from retaliation.” The NEP is effective immediately and will remain in force no longer than a year from March 12, 2021.
Also on March 12, 2021, OSHA issued an “Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)” (ERP). The ERP “provides new instructions and guidance to Area Offices and Compliance Safety and Health Officers (CSHOs) for handling COVID-19 related complaints, referrals, and severe illness reports.” It summarizes the NEP and details how CSHOs are to conduct inspections, and it makes on-site inspections the default method, with remote-only inspections to be conducted only with approval of the area director for CSHO safety reasons.
The NEP is a result of President Biden’s inauguration day executive order in which he “directed the Secretary of Labor, acting through the Assistant Secretary of Labor for Occupational Safety and Health, to launch a national program to focus OSHA enforcement efforts related to COVID-19] on hazardous conditions that put the largest number of workers at serious risk, and on employers that engage in retaliation against employees who complain about unsafe or unhealthful conditions or exercise other rights under the [OSH] Act.” It also follows the recent DOL inspector general’s report highly critical of OSHA under the prior administration and President Biden’s signing the most recent stimulus bill that provides OSHA $100 million in additional COVID-19 related funding.
The goal of the NEP is to “significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures [a reference to the U.S. Centers for Disease Control and Prevention’s (CDC’s) guidelines] and therefore, controlling the health hazards associated with such exposures. This goal will be accomplished by a combination of inspection targeting, outreach to employers, and compliance assistance,” with special emphasis on targeting. The NEP directs each region to continue performing a high percentage (at least five percent) of the region’s total assigned inspection goal, focusing agency resources on exposures in certain critical industries.
1. What industries does the NEP target for inspections?
Healthcare is the primary target of the NEP. But the NEP also includes two lists of North American Industry Classification System (NAICS) codes in general industry in which, according to OSHA’s data, the highest number of workers are expected to perform tasks associated with exposure to SARS-CoV-2.
Table 1 lists those healthcare industry employers targeted, including:
- offices of physicians and dentists;
- facilities for nursing care, assisted living, and retirement;
- home health care services; and
- ambulance services.
Table 2 lists those non-healthcare industry employers targeted, including:
- meat and poultry processing;
- grocery stores;
- discount department stores;
- general warehousing and storage;
- correctional institutions; and
- temporary help services (where the services occurred at healthcare facilities or other high-hazard workplaces).
All establishments in those categories having one or more workers fall under the NEP.
2. Whom will OSHA inspect first?
OSHA will inspect employers in target industries using a phased approach, with highest priority given to fatality inspections related to COVID-19, then to other unprogrammed inspections alleging employee exposure to COVID-19-related hazards and then to programmed inspections of covered establishments appearing in master lists.
Unprogrammed Inspections. The NEP prioritizes the inspection of fatalities, complaints and referrals based on allegations of worker exposures to SARS-CoV-2 as a result of insufficient controls (such as requiring personal protective equipment (PPE)) and other exposures to confirmed or suspected positive cases or symptoms. That prioritization applies whether the establishment falls or does not fall within an industry targeted by the NEP.
Follow-up inspections. When time allows by reason of a lull in fatality, complaint, and referral inspections, the NEP provides, OSHA is to inspect establishments previously inspected because of COVID-19-related fatalities and those cited for alleged COVID-19-related recordkeeping or reporting violations, exposures, or alleged violations for which abatement certification has not been provided.
Programmed Inspections. The NEP specifically targets, for programmed inspection, high-hazard industries with the greatest numbers of fatalities, complaints, referrals, inspections, and citations, as listed in Appendix A, “Primary Target Industries for the COVID-19 NEP.” Those targets include, but are not limited to, hospitals, assisted living facilities, nursing homes, and other healthcare and emergency response providers treating patients with COVID-19. Workplaces with high numbers of COVID-19-related complaints or known cases, such as correctional facilities, workplaces in critical industries in communities with increasing rates of transmission, and workplaces where workers are in close proximity (less than six feet) to the public or coworkers, such as meatpacking plants, poultry processing facilities, and grocery stores, also are subject to programmed inspection. A list of non-healthcare businesses that employ workers who maintain critical business operations or would otherwise help to maintain a health work environment and are likely to be at increased risk of exposure appears in Appendix B.
Whistleblower. For workers requesting inspections, complaining of exposure, or reporting, injuries, illness, or retaliation, the NEP directs area offices to submit a referral to the Regional Whistleblower Protection Program.
3. Will all workplaces and jobs be equal in an inspection under the NEP?
No. The ERP provides that CSHOs are to identify workplaces and job tasks with a risk-based potential for COVID-19 exposures and start with those with the greatest potential. The ERP lists those things the CSHO is to consider, including, but not limited to “the extent of community transmission; the type of work activity; the ability of workers to wear face coverings and appropriate … (PPE); the extent to which the employer follows OSHA standards and current guidelines from OSHA and the … (CDC); and the need to work in close contact with other people … defined as within 6 feet for a total of 15 minutes or more over a 24-hour period, per the CDC.” The ERP provides that jobs with “higher potential … are those with tasks that expose workers to known or suspected sources of SARS-CoV-2,” and “[j]obs with lower potential … are those that do not require close contact with others.” [Emphasis in original.]
4. Will there be an outreach period before programmed inspections begin?
No. Targeting for programmed inspections will begin on March 26, 2021.
When OSHA has issued new NEPs in the past, it generally has not initiated inspections until after a 90-day outreach period. But, not for this one. The NEP states that OSHA has continually conducted outreach during the pandemic and that the 90-day threshold therefore has been met.
5. How will inspections under this NEP differ from regular OSHA inspections?
Perhaps the most notable difference in COVID-19-related inspections from others is the NEP’s direction that “inspections should be conducted in a manner to achieve expeditious issuance of COVID-19 related citations and abatement.” This should cause employers great concern as they ponder whether one of OSHA’s goals in any inspection should be the issuance of a citation.
At the opening conference, the CSHO must verify the NAICS code for the establishment with the employer; determine whether work practices that may cause worker exposures are conducted at the facility or worksite; and review injury and illness logs (OSHA 300 and 300A) for calendar years 2020 and 2021 to identify any work-related cases of COVID-19.
The NEP directs the CSHO not to proceed with the inspection if the inspection was programmed, and he or she determines, through reviewing logs and interviewing employees, including managers, that no such work assignments exist and no cases of COVID-19 have occurred. However, the CSHO must proceed if the inspection is unprogrammed, even if there is no initial evidence of any COVID-19 exposures.
6. Does the NEP refer to an emergency temporary standard (ETS) related to COVID-19?
Yes. “In the event that OSHA issues an [ETS], those provisions will take precedence over citations of the general duty clause.” This likely foretells what most of us have deemed to be the obvious: that OSHA will issue an ETS—maybe just not by March 15, 2021, as President Biden initially directed.
7. Will an employer’s “good faith” attempt to protect workers matter to OSHA?
Perhaps. In the ERP, OSHA explains that the NEP “prioritizes enforcement and focuses on employers that are not making good faith efforts to protect workers.” It directs CSHOs to evaluate an employer’s good faith efforts to comply with applicable standards, including efforts to avoid or minimize exposures and consideration of alternative measures, such as remote or virtual training or communications. This continues the discretionary approach that OSHA outlined in its Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic” memorandum the agency issued on April 16, 2020. It is likely, we suggest however, that today’s OSHA is unlikely to exercise much of any such discretion in the employer’s favor.
8. Does the NEP apply to State Plans?
Technically, no; practically, yes. OSHA does not require State Plans to adopt the NEP, but “strongly encourages” them to do so. Within 60 days, every State Plan must submit a notice of intent indicating whether it already has a substantial similar policy in place, intends to adopt new policies and procedures, or does not intend to adopt anything. OSHA will then determine whether the State Plan is sufficient.
9. Will the NEP remain in force if OSHA adopts an ETS?
It is hard to say. But we think it unlikely OSHA would have gone to the work and lengths it has to develop the NEP that would wind up being at odds with any ETS it is in the process of developing. So that answer probably is yes.
Besides the typical steps an employer can take to be prepared for a visit by OSHA, employers preparing for an inspection under the NEP my want to consider:
- Reviewing the NEP to understand OSHA’s new targeting priorities;
- Reviewing all exposure control measures they have taken and comparing those measures to those recommended in guidance from OSHA, the CDC, and other public health agencies;
- Conducting periodic audits to insure that both management and the workforce understand and are following COVID-19-related protocols;
- Reviewing all OSHA logs and safety records to identify any indications of work-related COVID-19 issues at a particular facility or work site;
- Reviewing the ERP for details on how OSHA has directed CSHOs to conduct COVID-19-related inspections and considering training on-site safety personnel and managers on the different inspection elements (especially in healthcare operations)—which might be considered a key step to being prepared for both participating in and managing the appropriate scope of any inspection; and
- Training project or site management on how to use the opening conference with the CSHO to confirm—or not—that the inspection falls within the reach of the NEP and what prompted the inspection.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. For more information on OSHA’s COVID-19 National Emphasis Program, please join us for our upcoming webinar, “Biden OSHA’s COVID-19 Strategy: New Guidance, Possible Emergency Temporary Standards, and Perhaps More,” which will take place on Thursday, March 18, 2021, from 2:00 p.m. to 3:00 p.m. EST. The speakers, Valerie Butera, John Martin, and Phillip Russell will cover the requirements of the NEP. Register here. Important information for employers is also available via podcast programs.