OSHA Adjusts Focus of COVID-19 NEP

Last March, OSHA created a National Emphasis Program (NEP) for COVID-19. They just changed it significantly.

On July 7, the Occupational Safety and Health Administration (OSHA) released a revision to the COVID NEP [1][DIR 2021-03 (CPL 03)] — along with an Interim Enforcement Response Plan [2](IERP), which, among other things, has removed a significant number of industries from the list of targets for enhanced inspection activity.

The updated guidance to regional offices cancels and replaces the original NEP [3]issued on March 12, 2021. The IERP focuses programmed inspections on healthcare and non-healthcare workplaces that were “most commonly encountered in OSHA COVID-19 enforcement activities from 2020 to approximately the first half of 2021.”

Inspection procedures and enforcement

After the publication of an Emergency Temporary Standard (ETS) for Healthcare [4]on June 10, OSHA followed up with a new directive to regional offices on June 28. DIR 2021-02 (CPL 02)[5] establishes the inspection procedures and enforcement policies OSHA compliance officers will use when visiting a facility.

Non-healthcare industries that remain OSHA inspection targets include all those indicated in Appendix A of the original NEP — general warehousing, full and limited-service restaurants[6], staffing agencies, supermarkets, and grocery stores, correctional facilities, and poultry and meat processing plants. There is one addition to the non-healthcare target list in the updated NEP: the postal service. However, all secondary inspection targets — Appendix B[7] in the original NEP — have been eliminated.

Tightening up compliance

The IERP directs OSHA inspectors to dispense with the enforcement discretion recommended in previous guidance concerning respiratory protection/PPE and the need to conserve and reuse filtering faceplate respirators (FFRs) like N95s. During the pandemic, N95s and other disposable FFRs were sometimes in short supply. This is no longer the case.

The IERP also reiterates OSHA’s commitment to protect workers who report illnesses and request inspections and also fear (or experience) retaliation from their employer. The IERP provides additional guidance to help OSHA officials handle all COVID-related complaints, referrals, and illness reports.

Boosting the budget

Employers should also note that DOL Secretary Marty Walsh recently appealed to Congress[8] to increase the Department of Labor’s (DOL) budget next year. The July 22 memo says that “the department’s protection agencies lost 14 percent of their personnel over the last four years, and the DOL has lost approximately 3,000 employees during the same period.”

Secretary Walsh has requested $2.1 billion in 2022 for worker protection agencies, including $73 million for OSHA.

For employers, the current administration’s push for an increased on-site regulatory presence means that there is probably going to be less negotiating, more citations, and probably more litigation on the horizon. Be prepared.

If you have any questions or concerns about these matters — or have received an OSHA citation for any reason — don’t hesitate to contact us for assistance.

About the Author: James Laboe[9]

Endnotes:
  1. COVID NEP : https://www.osha.gov/enforcement/directives/dir-2021-03cpl-03
  2. Interim Enforcement Response Plan : https://www.osha.gov/laws-regs/standardinterpretations/2021-07-07
  3. the original NEP : https://orr-reno.com/osha-launches-a-national-emphasis-program-for-covid-19/
  4. Emergency Temporary Standard (ETS) for Healthcare : https://www.osha.gov/coronavirus/ets
  5. DIR 2021-02 (CPL 02): https://www.osha.gov/sites/default/files/enforcement/directives/DIR_2021-02_CPL_02.pdf
  6. restaurants: https://orr-reno.com/restaurants-are-now-osha-targets/
  7. Appendix B: https://www.osha.gov/sites/default/files/enforcement/directives/DIR_2021-01_CPL-03.pdf
  8. DOL Secretary Marty Walsh recently appealed to Congress: https://www.appropriations.senate.gov/imo/media/doc/Witness%20Testimony.pdf
  9. James Laboe: https://orr-reno.com/our-people/james-f-laboe/

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