On March 12, OSHA announced a new National Emphasis Program (NEP) on COVID-19 workplace safety, which is now in effect, as well as an updated Enforcement Response Plan (ERP). These new initiatives reveal OSHA’s latest priorities regarding protection of workplace health and safety, and reducing risk of employee COVID-19 exposure.
Here, we’ll take a look at the new NEP and the updated ERP, and as always, we’ll unpack some of the key lessons for employers.
Background
It’s been an eventful year so far for new and planned regulatory actions on COVID-19. President Biden issued an Executive Order (EO) on January 21, 2021 — one day after his inauguration. The EO charted a new and more proactive course on COVID-19 by tasking the Department of Labor and OSHA with a number of obligations. These included issuing revised guidance to employers on workplace safety during the COVID-19 pandemic, consideration of whether an emergency temporary standard on COVID-19 is needed, and if considered necessary, to issue the new standard by March 15.
OSHA fulfilled one of these mandates when it updated its COVID-19 guidance for employers on January 29. The revised guidance advises employers to provide COVID-19 vaccinations for workers at no cost, provide them with face coverings unless their work requires the use of a respirator, and to implement a COVID-19 Prevention Program.
New OSHA NEP
On March 12, OSHA announced a new NEP targeting specific ”high-hazard industries or activities” with increased risk of COVID-19 exposure. In a press release, OSHA stated that the NEP focuses enforcement efforts on companies with the largest number of workers at serious risk of contracting the coronavirus, and on employers who retaliate against workers for complaints about unsafe or unhealthy conditions in the workplace. The NEP went into effect on the day of its publication.
The NEP increases programmed inspections at high-risk facilities, prioritizing inspections in cases of COVID-19 fatalities, complaints and referrals for inspection. Additionally, OSHA states within the NEP that they are targeting facilities with NAICS codes associated with the highest numbers of OSHA-recorded fatalities, complaints, referrals, inspections, COVID-19-related violations and Hazard Alert Letters issued since April, 2020.
Primary targets for programmed inspections are listed in Appendix A of the NEP, organized in separate tables for healthcare and non-healthcare facilities. Selected healthcare NAICS codes listed as primary targets include:
- 622110 – General Medical and Surgical Hospitals
- 621910 – Ambulance Services
- 621610 – Home Health Care Services
- 623312 – Assisted Living Facilities for the Elderly
Non-healthcare primary targets include, but are not limited to:
- 311xxx – Food Manufacturing
- 312xxx – Beverage Manufacturing
- 321xxx – Wood Product Manufacturing
- 722511 – Full-Service Restaurants
- 493110 – General Warehousing and Storage
- 452112 – Discount Department Stores
- 445110 – Supermarkets and Other Grocery (except Convenience) Stores
The NEP also lists multiple secondary NAICS targets for both healthcare and non-healthcare facilities in Appendix B. To see the full lists of primary and secondary targets, check out Appendix A and B of the NEP, respectively.
The NEP explains OSHA’s priorities for non-programmed inspections, conducted in response to received reports about unsafe working conditions. The NEP states that OSHA gives the highest priority to responding to reports of fatalities, followed by complaints and referrals based on allegations of worker exposure to COVID-19-related hazards. The NEP also details procedures for follow-up inspections of facilities that have already been inspected as a result of a COVID-19 hazard.
New OSHA ERP
On the same day they announced the NEP, OSHA also issued an Updated Interim Enforcement Response Plan for COVID-19 (ERP) indicating how the agency’s compliance officers will handle complaints, referrals and serious illness reports related to COVID-19.
The ERP references the March 12 NEP and reinforces its objectives, stating that “OSHA’s goal is to identify exposures to COVID-19 hazards, ensure that appropriate control measures are implemented, and address violations of OSHA standards and the General Duty Clause.”
The ERP also states that while OSHA will conduct in-person facility inspections when safe and appropriate, they will also minimize in-person meetings with employers and encourage employers to provide documents and other data electronically to the agency’s compliance, health and safety officers (CSHOs).
What are the Takeaways?
As mentioned above, the NEP became active immediately upon its publication on March 12. Industry targeting per the NEP began on March 26, 2021. Additionally, states with federally approved state OSHA plans have until May 12 to inform OSHA of their plans to adopt the NEP, and must submit documentation of their policies to OSHA within 60 days of adoption, as indicated in this timeline.
With new NEP in place, employers face a greater chance of OSHA knocking on their door to conduct inspections for COVID-19 safety issues. This is especially true for businesses in NAICS codes identified within the NEP. An interesting point to consider here is that employers in some of those sectors, such as supermarkets and restaurants, may consider their industries to be “low risk” and therefore may have a false sense of immunity from OSHA inspections. As a result, they may not be as proactive as they need to be to maintain a safe workplace, which may also place them at elevated risk of violations should they receive inspections under the new NEP.
The need for proactive measures is sure to increase if OSHA produces the emergency COVID-19 standard referenced in President Biden’s EO. Many individuals with ties to the agency, including former director Dr. David Michaels, believe the agency is at work on the standard. Additionally, the March 12 NEP seems to acknowledge the potential for a standard, stating “In the event that OSHA issues an Emergency Temporary Standard [ETS], those provisions will take precedence over citations of the general duty clause.”
Now more than ever, employers need to take an active stance toward EHS management that breaks the cycle of chasing regulatory compliance and takes a broader safety management approach based on recognition and control of risks. Employers using that kind of approach will have the agility they need to adapt as new challenges and new regulatory requirements develop.
It can be challenging to get to a point of active EHS management, especially with all of our everyday management tasks and all of the additional obligations brought by the COVID-19 pandemic. Luckily, help is available. Modern cloud-based EHS software can simplify your most important responsibilities, help you keep all of the right people looped in, and give you the data visibility to drive better decision making.
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