President Biden issued an executive order on January 21, 2021 calling on OSHA to take a more active role in responding to the COVID-19 pandemic as it affects the health and safety of American workers. I previously discussed OSHA’s Guidance on Mitigating and Preventing the Spread or COVID-19 in the Workplace (“Guidance”), issued in response to that executive order, and the wisdom of reviewing COVID-19 prevention programs. See One New Year’s Resolution Not Forgotten: OSHA Issues Revised COVID-19 Guidance.
TWO NEW DEVELOPMENTS AT OSHA AFFECTING EMPLOYERS
Since that article was written, there have been two important new developments at OSHA in response to the executive order: first, OSHA has now created a COVID-19 National Emphasis Program (“NEP”), which will be the subject of this article. Note that like the prior Guidance, the NEP is currently based on employers’ responsibilities under the OSH Act’s General Duty Clause. Second, OSHA submitted a draft emergency temporary standard on COVID-19 to the Office of Management and Budget on April 26, 2021. The Firm will provide more guidance on that standard, which presumably provides more specific responsibilities on employers than the General Duty Clause, once more details are available.
OSHA’S COVID-19 NATIONAL EMPHASIS PROGRAM AND HEIGHTENED INSPECTIONS
An OSHA “National Emphasis Program” is a “temporary program that focus[es] OSHA’s resources on particular hazards and high-hazard industries.” The NEP here expires on March 12, 2022 if not extended.
With respect to the COVID-19 NEP, available at https://www.osha.gov/sites/default/files/enforcement/directives/DIR_2021-01_CPL-03.pdf, the key take-away point is employers, particularly in high-hazard industries, should expect heightened inspections and enforcement in the coming months, separate and apart from inspections based on employee reports. Appendices A and B of the NEP specify which NAICS codes are subject to heightened enforcement, but of interest to our clients, these lists generally include the healthcare industry, construction industry, and some manufacturing segments of the energy industry.
An inspection under the NEP consists of two main components, which include:
Opening Conference: An inspection will commence with an opening conference where the OSHA Compliance Safety and Health Officer (“CSHO”) will meet with company representatives and inquire about relevant COVID-19 protocols. The NEP also stresses the need for CSHO safety. At an opening conference, employers should therefore:
- Designate a primary point of contact for COVID-19 safety;
- Offer proper PPE to the CSHO along with instruction in its use;
- Provide a written COVID-19 safety protocol or policy to the CSHO for review, along with OSHA 300 and OSHA 300A logs for 2020 and 2021.
Walkthrough: The CSHO will then conduct a walkthrough of the designated part of the facility for inspection. The NEP specifically notes that the CSHO may interview employees, and notes that “[a]ll health hazards observed in the course of any inspection conducted under this NEP shall be appropriately addressed,” and further references employers’ responsibilities under the General Duty Clause in addition to stating that “[i]n the event that OSHA issues an emergency temporary standard, those provisions will take precedence over citations of the general duty clause.” In connection with an inspection, employers should therefore:
- Train employees on COVID-19 safety protocols and policies to ensure that such information is accurately communicated to the CSHO, in addition to increased safety and compliance;
- Maintain a cleaning program to reduce the risk of COVID-19 infection;
- Review the worksite to ensure that other potential OSHA violations are remedied prior to inspection, since the CSHO has authority to note other violations beyond just COVID-19 related.
The Bottom Line for Employers
Although the NEP is targeted at high-hazard industries, the foregoing recommendations should be considered by all employers for the simple fact that the prior Guidance, the current NEP, and the forthcoming emergency temporary standard all indicate that OSHA enforcement of safety standards related specifically to COVID-19 are only going to increase over time.