March 25, 2021 BY Neil Brunetz
OSHA Launches COVID-19 National Emphasis Program, Protecting High-Risk Workers and Prioritizing Onsite Inspections
On March 12, 2021, in response to a presidential executive order, OSHA issued Directive 2021-01 (CPL-03), establishing a National Emphasis Program (NEP) for COVID-19. With this latest directive, OSHA is spotlighting employers’ response to COVID-19 and appropriate workplace protections for employees.
What is the objective of this program?
With a goal of significantly reducing or eliminating worker exposures to SARS-COV-2, the virus that causes COVID-19, the NEP applies OSHA-wide and seeks to target high-hazard industries and employers with the largest number of potential at-risk employees. To accomplish this, OSHA will implement a combination of inspection targeting, outreach to employers and compliance assistance. The NEP is set to expire after 12 months but can be cancelled early or extended through Further Directives.
The NEP requires state plans to indicate whether they (1) intend to adopt new policies to comply, (2) have a substantially similar policy in place, or (3) do not intend to adopt the OSHA Directive.
What are the procedures and what industries are targeted?
In selecting sites for programmed inspections, the NEP will generate Master Lists based on NAICS Codes and 300A data to identify establishments with elevated illness rates. This will likely largely include healthcare industry employers, ranging from physicians’ offices and hospitals to ambulance services and home healthcare services. Non-healthcare industry employers targeted include meat and poultry processing, grocery stores, discount department stores, general warehousing and restaurants, among others. In addition, Area Offices may add establishments based on local knowledge of COVID-19 from appropriate sources, such as media referrals, local health departments and other federal agencies. Area Offices will create a randomized programmed inspection schedule.
In addition to programmed inspections, unprogrammed inspections will continue, with continued priority for COVID-19 Fatality events. COVID complaints and referrals shall also be given priority for on-site inspections. It is important to note that as part of the NEP, all safety violations that are in plain view during a walkaround on-site inspection must be addressed by Certified Safety and Health Officials and cited, where appropriate.
Recognizing that, for a number of citations, the General Duty Clause may be the most appropriate standard, OSHA provides guidance that states the CDC guidelines and recommendations in place at the time of the alleged exposure should be consulted as one source for hazard recognition and potentially feasible methods of abatement.
OSHA also envisions outreach programs to bring this NEP to the attention of employers. This includes continued outreach programs concerning COVID-19, including new guidance and this NEP, by Area Offices. Suggested local outreach efforts could also include: Letters and news releases announcing implementation of the updated COVID-19 NEP; seminars on COVID-19 related topics; working with national and regional offices of federal agencies with similar outreach goals, such as CMS, USDA and others, to disseminate information on the NEP and the pandemic’s effects on vulnerable workers; and more strategies outlined within the directive.
Where can I learn more?
Online resources can be accessed through OSHA’s public webpage, including the OSHA COVID-19 Safety and Health Topics Page (www.osha.gov/coronavirus). To learn more about how our team at Drew Eckl & Farnham can help your business adhere to the latest changes, please visit (www.deflaw.com).
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley