On March 12, 2021, the Occupational Safety and Health Administration (“OSHA”) launched its new COVID-19 National Emphasis Program (“NEP”). The new OSHA directive outlines policies and procedures for minimizing worker exposures to COVID-19 by targeting certain “high-hazard” industries and worksites where employees may have a high frequency of close contact exposures. The NEP and related updates to OSHA’s Interim Enforcement Response Plan (“IERP”) are in response to President Biden’s January 21, 2021 Executive Order, which also gave OSHA until March 15 to determine whether a COVID-19 emergency temporary standard (“ETS”) is necessary. Although March 15 has come and gone, OSHA may nevertheless still consider and implement a national ETS. In the meantime, employers should review the information below and familiarize themselves with the NEP to determine whether they may be targeted for a COVID-19-related federal OSHA inspection this spring and summer.
The NEP Basics
The NEP will augment OSHA’s current efforts aimed at responding to “unprogrammed” COVID-19 related activities (e.g., complaints, referrals, and severe incident reports) by rolling out programmed inspections at workplaces deemed to have an increased potential risk of exposure and follow-up inspections at workplaces previously cited for COVID-19-related violations. Under a normal NEP, OSHA must conduct outreach for 90 days before initiating inspections. However, OSHA claims here that the outreach it already conducted nationally and regionally during the pandemic satisfies the 90-day outreach requirement, thereby allowing Area Offices to initiate inspections pursuant to the NEP immediately. Additionally, in California and other states with an OSHA State Plan where the state government handles enforcement of safety regulations, the state must notify federal OSHA within 60 days of March 12 whether the state intends to adopt the NEP, implement similar initiatives, or rely upon the state’s own standards or policies. Although OSHA strongly encourages State Plans to adopt the NEP, it is not required. The NEP is effective for 12 months from March 12, 2021, but OSHA has the ability to cancel it at an earlier date or extend it.
The NEP instructs Area Offices to create their own inspection targeting goals by utilizing two “Master Lists” for selecting worksites for inspections. The Master Lists include all industry worksites with a North American Industry Classification System (“NAICS”) code listed in Appendices A and B of the NEP. Appendix A includes healthcare and nursing care facilities, along with other “frequent offender industries” based on enforcement data, including meat and poultry processing, supermarkets, general warehousing and storage, and restaurants. Appendix B contains NAICS codes for industries with employees who purportedly have the highest frequency of close contact exposures to the public and/or co-workers, including building construction, food and beverage manufacturing, and other manufacturing industries. In addition, the updates to OSHA’s IERP state that Area Offices will prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19. Employers should review these lists and their COVID-19 exposure histories to determine if they face a greater likelihood of a programmed or follow-up inspection.
A typical OSHA inspection consists of an opening conference upon entering the worksite, document request and review, walk-through, witness interviews, and closing conference. The NEP provides specific guidance on these inspection procedures and the issuance of citations. The NEP also states that in an effort to ensure that workers are protected from retaliation, OSHA will distribute anti-retaliation information during inspections, increase its outreach opportunities, and promptly refer allegations of retaliation to the Whistleblower Protection Program. The IERP instructs that, where practical, OSHA will perform on-site inspections. OSHA will limit remote-only inspections to cases where on-site inspections cannot safely be performed (e.g., if the only available inspector has a medical concern).
Despite the substantial uptick in vaccine availability, employers are still not out of the woods when it comes to COVID-19 OSHA compliance. Thus, employers—particularly those on the Master Lists or that OSHA cited previously for COVID-19-related violations—should ensure they have implemented all applicable infection prevention safety measures in accordance with current OSHA guidance and are prepared for a potential inspection. Employers also would be wise to anticipate the issuance of national ETS in the near future, despite current uncertainty as to what they might contain. Employers with any questions or concerns should consult with experienced OSHA counsel to ensure they are satisfying all of the increased safety and health obligations and complications brought on by the pandemic.
The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation. This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.
Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 81