On 21 January 2021, President Biden signed an executive order directing the Department of Labor’s launch of a national programme to focus Occupational Safety and Health Administration (OSHA) enforcement efforts related to COVID-19 on hazardous conditions that put the largest number of workers at serious risk and on employers that engage in retaliation against employees who complain about unsafe conditions.
As a result, on 12 March 2021, OSHA issued a National Emphasis Program (NEP), which ‘target[s] specific high-hazard industries or activities’ where the danger of contracting COVID-19 is prevalent. Additionally, on the same date, OSHA issued an Updated Interim Enforcement Response Plan for COVID-19 (ERP), which ‘provides new instructions and guidance to Area Offices and Compliance Safety and Health Officers (CSHOs) for handling COVID-19 related complaints, referrals, and severe illness reports.’
The goal is to significantly reduce or eliminate worker exposures to COVID-19 by targeting industries and worksites where employees may have a high frequency of close contact exposures. This goal is to be accomplished by a combination of inspection targeting, outreach to employers, and compliance assistance, with a particular emphasis on targeting.
The NEP includes two lists of the industries targeted for inspections:
In addition to programmed inspections of the above industries, OSHA will, through unprogrammed inspections, continue to prioritise fatalities, complaints and referrals based on allegations of worker exposures to COVID-19 as a result of insufficient controls and other exposures to confirmed or suspected positive cases or symptoms. This prioritisation applies regardless of whether the company falls within an industry included on NEP Appendixes A and B.
While OSHA has yet to develop an emergency temporary standard (ETS) with regard to COVID-19, the NEP makes reference to likely future issuance of one: ‘In the event that OSHA issues an (ETS), those provisions will take precedence over citations of the general duty clause.’
The NEP directs that industry targeting would begin within two weeks, in other words, by 26 March 2021. As such, employers who fall within the above-targeted industries should review the NEP and ERP to ensure they understand the new targeting priorities as well as details on how COVID-19 related inspections will be conducted and should also review OSHA logs and safety records to identify any COVID-19 related issues prior to an inspection.