For several weeks, employers throughout the country and various hard-hit industries impacted by COVID-19 have widely anticipated OSHA’s response and action to President Biden’s January 21, 2021 Executive Order directing OSHA to implement a national program to focus OSHA’s efforts and enforcements on industries where COVID-19 exposure is the most prevalent and where the largest number of workers are at risk for contracting COVID-19. On March 12, 2021, OSHA announced its National Emphasis Program (NEP) for Coronavirus Disease 2019 (COVID-19) and updated its enforcement guidance to help implement the NEP.
The stated purpose of the NEP is to protect workers from contracting COVID-19 and to eliminate exposure to COVID-19 as much as possible. In order to accomplish this purpose, OSHA will target certain high-hazard industries and businesses—including businesses that have responded to complaint letters, been inspected, or received citations within the last 12 months—through programmed and unprogrammed inspections and follow-up inspections related to COVID-19. OSHA will also increase its efforts to ensure workers are protected against retaliation for reporting unsafe or unhealthy work environments related to COVID-19. The NEP is effective immediately and is expected to remain in place for no more than twelve months.
Below is a brief overview of what employers can expect under the NEP followed by a few practical pointers you might consider for your business.
What to Expect Under the NEP:
Throughout the pandemic, OSHA has been heavily scrutinized for performing fewer inspections despite an overwhelming increase in complaints compared to prior years. Most inspections completed during 2020 were not conducted on site and were instead conducted remotely. To remedy these shortcomings, the COVID-19 NEP requires at least 5% of OSHA’s inspections be COVID-19 inspections, which should equal approximately 1,600 inspections on a national level. To accomplish this goal, OSHA inspectors can no longer perform solely remote COVID-19 inspections unless prior approval is granted by the Area Director. Additionally, OSHA will perform unprogrammed inspections, follow-up inspections, programmed inspections, and various outreach measures with priority set by the NEP.
First, the OSHA Area Offices will continue to prioritize investigations of COVID-19 fatalities, complaints, and referrals through unprogrammed inspections. These unprogrammed inspections will continue whether the employer is in a high-risk industry or not. Nevertheless, OSHA estimates the majority of unprogrammed inspections will continue to occur in the healthcare industry which accounted for 24% of COVID-19 complaints since the onset of the pandemic. OSHA inspectors will conduct the unprogrammed inspections on site or through a combination of on site and remote means.
Second, follow-up inspections will be completed at businesses that were previously cited for a COVID-19 fatality, received deferred violations, or received serious violations for COVID-19 hazards within the last twelve months. The purpose of the follow-up inspections is to ensure employers have corrected the COVID-19 hazards previously identified. Follow-up inspections may be conducted on-site or through a combination of on-site and remote methods. Employers could be required to provide OSHA with written updates during the follow-up investigation.
Third, programmed inspections will now be conducted based on lists of healthcare and non-healthcare industries that have the highest number of COVID-19 fatalities, complaints, referrals, inspections, and violations since April 2020. Programmed inspections will begin on March 26, 2021. Examples of targeted healthcare industries include skilled nursing facilities, assisted living facilities, correctional institutions, meat/poultry processing plants, grocery stores, and restaurants. Manufacturing centers, general merchandise stores, urban transit systems, and food and beverage stores are identified as some examples of additional non-healthcare targeted industries. Each Area Office is responsible for compiling a “master list” of the targeted employers or establishments.
Finally, OSHA will continue outreach programs concerning COVID-19 at the national and local levels with an emphasis on employee retaliation protections. Workers may be afforded protection under whistle blower protection statutes.
Practical Guidance for Employers:
Here are a few areas to consider addressing with respect to the NEP:
- Put a plan in place for OSHA inspections, particularly if your business is included in one of the highest targeted industries. Unlike the last 12 months, we expect more unannounced onsite inspections.
- If your company received an OSHA citation within the last twelve months related to COVID-19 (g., failure to implement a respiratory protection plan, failure to complete a medical evaluation to determine an employee’s ability to use a respirator, failure to complete fit testing for N95s, and failure to accurately record 300 log data) be prepared for a follow-up inspection. Area Offices can schedule follow up inspections to meet the 5% goal. These will be easy targets if OSHA Area Offices are unable to meet their quota through programmed and unprogrammed inspections.
- Make sure your 300 Log data is current and correct. The 300 Log data will be reviewed and possibly analyzed in more detail during an inspection.
- Create or update your written COVID-19 safety plan. Many businesses are beginning to transition toward “normal” work status. As your levels of risk and precautions evolve, following a written plan will likely make a positive impression during an OSHA inspection.
- Continue to complete medical evaluations and fit testing where you require employees to use N95s. If your facility or business was previously cited for failing to complete medical evaluations or fit testing, make sure all locations within your company have completed these tasks to avoid potential repeat citations.
- Evaluate the need for other engineering controls. OSHA has focused heavily on respiratory protection plans and necessary PPE throughout the pandemic, but potential citations under the General Duty Clause will force employers to consider additional engineering controls, such as improving ventilation, limiting access, or separating workspaces, to further protect workers against COVID-19.
- Continue COVID-19 training with employees. Document all COVID-19 training that has been completed with employees to date, so you are prepared when an inspector asks for this information.
We are constantly monitoring for new regulations and guidance and have provided numerous employers with COVID-19 health & safety policies. We have also assisted several employers with OSHA inspections and responses to citations. Please do not hesitate to contact us if we can assist or advise you in any way as your business prepares for the NEP.
Written By: Brittney Claud & Weathers Bolt , with contribution from Michael Arther, NHA (michael@mcaconsult.net)
If you have any questions or need legal support , please contact:
Richard Davis at 205-868-6044 or rdavis@starneslaw.com
Trip Umbach 205-868-6072 or tumbach@starneslaw.com
Reed Bates 205-868-6080 or rbates@starneslaw.com
Weathers Bolt 251-445-4718 or wbolt@starneslaw.com
Brittney Claud 205-868-6058 or bclaud@starneslaw,com
Click Here to view more COVID-19 Resources
This information is not intended to provide legal advice, and no legal or business decision should be based on its content. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers. Read full disclaimer.
