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Shortly after taking office, President Biden directed the Occupational Safety and Health Administration (OSHA) to promulgate an Emergency Temporary Standard (ETS) to address COVID19 issues in the workplace. The deadline given to accomplish this task was March 15, 2021. Instead of issuing an ETS, however, on March 12, 2021, a National Emphasis Program – Coronavirus Disease 2019 (NEP) was released. NEPs are programs that, for an established period of time, focus OSHA’s resources on identified hazards in specific industries. The COVID-19 NEP sets out OSHA’s initiatives to reduce or eliminate employee exposure to the virus in industries that place the largest number of employees at risk. Recently, on May 13, 2021, the Centers for Disease Control and Prevention (CDC) announced that fully vaccinated individuals no longer need to wear face masks or physically distance except in healthcare and a few other settings. This announcement came as a surprise to many and with an important caveat. It does not apply to the extent that it conflicts with federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. According to CDC data, as of May 17, 2021, only 37 percent of Americans have been fully vaccinated. As such, a majority of the workforce would still be subject to the requirements of the NEP issued by OSHA. The COVID-19 NEP has two main focuses. The first is targeted toward employers in an expansive list of industries and involves efforts those employers must make to protect employees. Increased OSHA workplace inspections will take place to enforce adherence to safe practices. These inspections are serious business. In 2020, OSHA conducted inspections at 369 private workplaces related to COVID-19 practices under OSHA’s General Duty Clause and levied $4.2 million in fines. The second focus is on employee outreach and compliance assistance. OSHA will be particularly involved in preventing retaliation against workers who raise concerns about safety. From April 2020 to March 2021, OSHA and its state counterparts received nearly 65,000 complaints
Breaking Down OSHA’s New COVID-19 National Emphasis Program
Guidance for Employers to Avoid OSHA Citations Brett Adair and Melisa C. Zwilling
Carr Allison
about COVID-19 workplace safety issues. The Biden administration has provided significant additional funding for OSHA to hire additional inspectors and facilitate the increase in enforcement efforts and employee education. TARGETED EMPLOYERS The NEP is aimed at employers with workers who have an increased risk of exposure to COVID-19. Those employers are broken down into two categories depending on the type of inspection OSHA will
conduct. Programmed inspections are performed at randomly selected employers based on scheduled, objective selection criteria. Unprogrammed inspections are conducted at specific worksites in response to allegations of hazardous working conditions. This category of inspection will be used to focus on allegations that an employer had inadequate environmental controls in place as well as employee exposure to individuals with confirmed or suspected cases of COVID-19. There are two lists of the industries targeted for programmed inspections. Healthcare Industry Employers • Physicians’ Offices • Dentists’ Offices • Home Health Services • Ambulance Services • Hospitals • Nursing Care, Assisted Living and Continuing Care Retirement Facilities Non-Healthcare Industry Employers • Meat and Poultry Processing • Supermarkets and Grocery Stores • Food and Beverage Stores • Department and General Stores • Warehouse Clubs and Supercenters • General Warehousing and Storage • Certain Temporary Help Services • Restaurants • Correctional Institutions • Building Construction • Manufacturing Facilities • Transportation Systems
WHAT SHOULD EMPLOYERS IN TARGETED INDUSTRIES DO? All employers should be prepared for an OSHA inspection, but employers in the targeted industries should be especially prepared. Employers should consider implementing as many of the guidelines noted by OSHA in its recent publication entitled Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace as possible. Some of the safety measures outlined by OSHA are noted below. Employer Processes and Policies • A hazard assessment process should be implemented to identify how and where employees might be exposed to COVID-19.
