As mandated by President Biden’s January 21 Executive Order, OSHA has announced a National Emphasis Program (NEP) designed to protect workers from contracting COVID-19. On March 12, 2021, OSHA announced its new national emphasis program that targets high-risk establishments in high-risk industries for programmed inspections and provides a heightened focus on employers that retaliate against employees who report or complain about unsafe working environments. In conjunction with the NEP, OSHA also issued an updated Interim Enforcement Plan to provide guidance on the policies and procedures it will employ to reduce and eliminate the risk of transmission of COVID-19 in the workplace. The issuance of the NEP is a strong indication that OSHA enforcement activity will increase in the short term.
OSHA did not address whether the NEP is in lieu of an Emergency Temporary Standard.
National emphasis program
Under the newly launched NEP, OSHA will target enforcement resources on employers in critical, high-hazard industries or work tasks that have an increased exposure risk to SARS-CoV-2, the virus that causes COVID-19 and that place the largest numbers of workers at risk. As part of the NEP, OSHA will also target employers that retaliate against employees for complaining of unsafe working conditions. OSHA State Plans are encouraged but not required to adopt the NEP and must submit a notice of intent within 60 days of the directive’s effective date stating whether the State Plan already has adopted substantially similar policies and procedures, intends to adopt the NEP, or does not intend to adopt the NEP. Because OSHA has conducted outreach during the last 12 months of the pandemic, it will dispense with the 90-day outreach period and begin inspections under the NEP immediately. The NEP will remain in effect one year from the directive’s effective date.
According to the directive, the NEP augments OSHA’s unprogrammed inspections related to complaints, referrals and severe incident reports. Under the NEP, the agency will accomplish its goal of decreasing COVID-19 exposures by increasing targeted, planned/programmed and follow-up inspections in workplaces where employees have a high frequency of close contact exposures and where the hazard is prevalent and by engaging in employer outreach and compliance assistance. Establishments targeted for programmed site inspections will be determined based on two lists generated by the agency that identifies 1) high-risk industries in healthcare and non-healthcare sectors and 2) critical non-healthcare infrastructure industries having an elevated illness rate based on Form 300A 2020 data. OSHA intends to allocate agency resources so that 5% of each Region’s total assigned inspections are COVID-19 related and in high-hazard industries. Additionally, OSHA will proactively seek to protect workers from retaliation by distributing anti-retaliation information during inspections, employ outreach opportunities and refer allegations of retaliation to the Whistleblower Protection Program.
Interim enforcement response plan
OSHA also issued an updated Interim Enforcement Response Plan (Response Plan) to provide instructions and guidance to area offices and compliance safety and health officers for handling COVID-19 related complaints, referrals and severe illness reports. The agency’s updated plan prioritizes enforcement and focuses on employers that are not making good-faith efforts to protect workers. It emphasizes that OSHA’s goal is to conduct on-site inspections, identify exposures, ensure appropriate control measures are being implemented, and issue citations for violation of OSHA standards and the General Duty Clause. The updated Response Plan rescinds the earlier interim enforcement plan previously issued on May 19, 2020, and is effective immediately.
Targeted industries in healthcare
Appendix A of the NEP contains a list of industries in healthcare that will be targeted by OSHA as part of the NEP. OSHA enforcement data identifies nursing care facilities, including skilled nursing care facilities, continuing care retirement communities, and assisted living facilities for the elderly among other health-care sector industries with the highest number of worker exposures. Facilities in these industries can expect targeted inspections under the NEP at their worksites over the next year.
If you have questions about OSHA inspections under the NEP or other issues related to workplace safety, contact Donna Pryor or your Husch Blackwell attorney. Tracey Oakes O’Brien, Legal Content and Knowledge Manager, is a co-author of this content.