On March 12, 2021, OSHA announced that it is implementing a National Emphasis Program (“NEP”) designed to “ensure that employees in high-hazard industries or work tasks” are protected from contracting COVID-19.
This new NEP is notable because it contemplates increased workplace inspections for a wide range of businesses and also signals a greater focus on protecting employees from retaliation in connection with reporting possible COVID-19-related workplace safety violations.
Stated Purpose of the NEP
As explained in guidance from OSHA issued with the announcement of the NEP, the program’s goal is to “significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures and therefore, controlling the health hazards associated with such exposures.” OSHA states that it expects to accomplish this goal by “a combination of inspection targeting, outreach to employers, and compliance assistance.”
Accordingly, OSHA plans to continue a high percentage of COVID-19 inspections, with a focus on unprogrammed inspections of healthcare worksites. However, a wide variety of industries are subject to the NEP.
To complete the inspection site selection process, the guidance instructs OSHA Area Offices to generate “Master Lists,” which will be created using criteria set forth in the guidance. The primary target industries are healthcare providers, including physician and dentist offices, hospitals, and nursing and assisted living facilities. Additionally, non-healthcare industries that have, in OSHA’s view, the “highest amount of workers expected to perform tasks associated with exposure to SARS-CoV-2” are identified as high priority targets for inspection. Businesses subject to this category include meat processors, supermarkets and grocery stores, discount department stores, warehouses, restaurants, and correctional institutions, among others.
The guidance identifies as “secondary target industries” those businesses where essential workers are likely to have close contact exposures to the public or coworkers, including businesses within the food and agriculture, construction, manufacturing, and transportation and logistics spaces. Among all of the identified industries, businesses that have “elevated illness rate as indicated by Form 300A data” will also be listed for potential inspection. Businesses can be added to the Master Lists for nearly any reason, including “local knowledge,” “media referrals,” or “previous OSHA inspection history.”
As such, a wide variety of businesses are subject to increased inspection and enforcement for potential COVID-19-related violations following the issuance of this NEP.
OSHA is still directing Area Offices to prioritize COVID-19 fatality events for inspection, but allegations of potential worker exposures to COVID-19, or involving workers suspected or confirmed positive for COVID-19, “shall be treated as having priority for conducting an on-site inspection[.]” OSHA advises that the Area Director “will exercise discretion in determining the order in which each establishment is assigned for inspection.”
These inspections will be conducted using either on-site or a combination of on-site and remote methods, with OSHA appearing to indicate a preference for on-site inspections.
Pursuant to President Biden’s January 21, 2021 Executive Order on Protecting Worker Health and Safety, OSHA also plans to focus its enforcement efforts on “employers that engage in retaliation against employees who complain about unsafe or unhealthful conditions or exercise other rights under the Act.” Accordingly, we expect increased communications to both employers and employees regarding workplace retaliation protections. Where a worker is alleging some form of retaliation, OSHA directs the Area Office to submit a referral to the Regional Whistleblower Protection Program.
The NEP is effective as of its March 12, 2021 issuance date and shall be effective for no more than 12 months after March 12, 2021. The NEP can be canceled or extended by a superseding directive. The guidance indicates that the Directorate of Enforcement Programs will review the NEP within six months to determine whether the policy will be continued or replaced if needed.
Although inspections under a NEP usually are not initiated until after a 90-day outreach period, inspections under this NEP can begin immediately. The guidance instructs that targeting for programmed inspections should begin at least two weeks after March 12, 2021. In the interim, unprogrammed inspections may proceed.
Given the broad scope of the NEP and the increased focus on COVID-19-related workplace safety, all potentially affected businesses should review the OSHA guidance and prepare for potential inspections. If you have questions about the NEP, please contact a member of AGG’s Employment Law team.