OSHA Launches a National Emphasis Program for COVID-19

OSHA’s National Emphasis Program for COVID-19 has arrived. And, if you’re on OSHA’s target lists, it’s wise to prepare for a visit in the months ahead.

Not an Emergency Temporary Standard… yet

In late January, the Occupational Safety and Health Administration (OSHA) was charged by the Biden Administration to develop an Emergency Temporary Standard (ETS) to address COVID-19 safety concerns in the workplace. The executive order set the response deadline as no later than March 15, 2021.

OSHA’s response, which came on March 12, was not the expected ETS but a NEP. The National Emphasis Program (NEP) for COVID-19 will remain in effect for 12 months.

It’s unusual for OSHA to announce a NEP before publishing an ETS, but these are unusual circumstances. Also, most insiders believe that an ETS is still on the near horizon — just not quite yet.

What does this mean for employers?

OSHA’s National Emphasis Programs are designed to help the agency’s regional offices prioritize safety and health inspections. The COVID-19 NEP targets industries having the highest number of fatalities, complaints, and COVID-related violations.

It’s no surprise that the list includes hospitals, long-term care facilities, and home health care services, but the NEP also targets other industries that OSHA has identified as having higher rates of exposure and illness rates — as indicated in the illness and injury reports that employers file annually (Form 300A) summarizing injury and illnesses for the previous year. The deadline for employers to file these forms for 2020 was March 2, 2021.

These additional targets include meat processing firms, grocery stores, discount department stores, restaurants, temporary help services, and several others. The full list of OSHA’s primary and secondary targets can be found in Appendix A and B of the NEP.

Until we have a standard, OSHA plans to continue using Section 5(a)(1) of the Occupational Health and Safety Act (the General Duty Clause) as the legal basis for a citation. The General Duty Clause requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA has already used the General Duty Clause for COVID-related citations, and the COVID NEP states clearly that the agency will continue to do so.

Other existing standards may also come into play during an inspection, particularly those involving respiratory protection, sanitation, and recordkeeping.

Enforcement starts immediately

In addition to the COVID-19 NEP, OSHA also published an updated Interim Enforcement Response Plan, which directs regional offices to prioritize COVID-related inspections involving deaths or multiple hospitalizations and perform on-site inspections when it is practical.

The new enforcement guidance went into effect on March 18, with inspections beginning March 26. OSHA expects COVID-related inspections to make up at least 5 percent of all inspections over the next 12 months.

What employers need to do

Employers should first check the NEP appendices and determine if your business is considered a target for on-site inspection. If you find your business on either the primary or secondary target list, you should prepare for a possible inspection. The best way to prepare is to review the latest workplace guidance posted on January 29, 2021, and make sure you are compliant.

Even if OSHA never comes knocking in the months ahead, your preparation now gives you a head start on complying with the ETS — which probably isn’t too far away.

What will the ETS look like?

The federal ETS will probably echo the emergency standard that several state-based OSHA programs have already enacted (California, Michigan, Oregon, and Virginia). There will undoubtedly be court challenges to a federal ETS, especially if the federal standard includes things like the employer-funded testing responsibilities and mandated paid leave provisions of the California ETS.

In the meantime…

Feel free to get in touch if you have questions or concerns about the ever-emerging compliance issues your business is facing.

About the Author: James Laboe

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