OSHA’s National Emphasis Program for COVID-19 Inspections: Things to Look For
On March 12, 2021, OSHA established a 12-month long “National Emphasis Program,” effecting an immediate emphasis on the enforcement of safety standards associated with COVID-19. The “COVID-19 NEP” also creates “an added focus to ensure that workers are protected from retaliation.” OSHA coupled the COVID-19 NEP with an “Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19),” which details how Compliance Safety and Health Officers (“CSHOs”) should handle complaints, referrals, and severe illness reports, including in light of the COVID-19 NEP.
Some may be asking themselves what a National Emphasis Program, or “NEP,” actually is. It is a form of Directive issued by OSHA, which focuses its resources nationwide upon particular hazards and high-hazard industries. For example, in the past, OSHA has issued NEPs on Amputations in Manufacturing Industries, Primary Metal Industries, Respirable Crystalline Silica, and Trenching and Excavation, among others.
The “COVID-19 NEP” is the result of the executive order signed by President Biden on inauguration day, instructing the Secretary of Labor to “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.”
OSHA’s highest priority under the COVID-19 NEP is fatality inspections related to COVID-19. Its next highest priority is unprogrammed inspections – meaning inspections based on complaints, referrals, or incident reports – alleging employee exposure to COVID-19 hazards. Area offices may use follow-up inspections when unprogrammed activities have decreased. In other words, if your workplace was previously the subject of an OSHA inspection, it is possible that you will be the subject of a follow-up inspection under the COVID-19 NEP.
Programmed inspections will also continue to be conducted as part of the “phased approach.” The COVID-19 NEP includes a list of targeted industries, selected for what OSHA describes as the “increased potential exposure” to COVID-19 for workers at such establishments. Healthcare seems to be the primary target. However, other industries where large numbers of workers may be exposed to COVID-19 are also targeted, including critical infrastructure industries, meat and poultry processing, grocery stores, restaurants, correctional institutions, and discount department stores. Now would be a good time to do a review of your company’s injury and illness logs because the COVID-19 NEP provides that logs for calendar years 2020 and 2021 will be reviewed at the opening conference for inspections. If, in a programmed inspection, the logs – which may be coupled with employee interviews – show that no work assignments, recorded cases or reports of positive or suspected COVID-19 exposures resulted in lost work time, hospitalization or fatality, then the CSHO is directed not to proceed with the inspection.
President Biden’s executive order also directed OSHA to consider the necessity of an Emergency Temporary Standard (“ETS”) for COVID-19 regulations and, if so, issue the same by March 15, 2021. Although that date is past, it is anticipated that OSHA will soon do so. The COVID-19 NEP explicitly paves the way, referencing the possibility that the Updated Interim Enforcement Plan may be superseded by an ETS, and providing that an ETS would “take precedence over citations of the general duty clause.”
In a nutshell, the COVID-19 NEP brings with it the promise of more inspections for the foreseeable future.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.