Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In response to President Biden’s January 2021 executive order, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) released a National Emphasis Program (NEP) on March 12, 2021, targeting industries where workers are at a high risk of contracting SARS-CoV-2, the cause of COVID-19. In addition, the NEP includes an added focus to ensure that workers are protected from retaliation when complaining about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.
The NEP increases OSHA’s emphasis on COVID-19-related hazards by formalizing components for planned/programmed and follow-up inspections in workplaces where employees have a high frequency of close contact. The NEP outlines various policies and procedures to identify and reduce or eliminate exposure to COVID-19 through inspection targeting, outreach, and compliance assistance. Specifically, OSHA has set a goal that each regional office devote 5% of their annual inspections to COVID-19 inspections, which amounts to approximately 1,600 COVID-19 inspections nationally.
These inspections will target establishments that have workers with increased potential exposure to COVID-19, and that put the largest number of workers at serious risk. OSHA has specifically flagged the healthcare industry (e.g., hospitals, home health care, assisted living facilities) and industries where workers are at in increased risk of close contact with one another and the general public (e.g., animal processing plants, grocers, restaurants). A full list of the targeted industries can be found in Appendix A and B of the NEP.
Inspections related to COVID-19 fatalities will be given the highest priority, followed by inspections alleging employee exposure to COVID-19 hazards. OSHA will also conduct follow-up inspections at establishments previously cited for COVID-19-related violations. In contrast to the process during the prior administration, OSHA clarified that these inspections should be conducted on site (in person) as opposed to remotely.
Of note, inspections typically are not initiated under an NEP until a 90-day outreach period has been completed. Because OSHA has been educating employers on methods to keep their workers safe from COVID-19 throughout the pandemic, however, the 90-day outreach period has been met in OSHA’s view. As a result, enforcement of the NEP may begin as early as two weeks from its effective date.
OSHA recognizes that many OSHA-State plans have already implemented a number of COVID-19 protections. While OSHA strongly encourages all OSHA-State Plans to adopt this NEP, adoption is not mandatory. Instead, a State Plan must notify OSHA within 60 days whether it already has a substantially similar policy in place, intends to adopt new policies and procedures, or does not intend to adopt the NEP.
The NEP expires one year from its effective date, although OSHA retains the ability to cancel the NEP at an earlier date or extend the NEP beyond its 12-month expiration date.
Employers, especially those in the high-risk industries OSHA has identified or that have been previously been cited for COVID-19-related violations, should prepare themselves for potential increased OSHA enforcement efforts. To that end, employers should make sure they have developed, implemented, and are maintaining a plan to reduce the risk of exposure to COVID-19 in the workplace.