New Federal OSHA COVID-19 National Emphasis Program and Enforcement Response Plan Targets Industries and Activities for Inspection

On March 12, 2021, the U.S. Occupational Safety and Health Administration (OSHA) released a new National Emphasis Program (NEP) designed to “significantly reduce or eliminate worker exposures to [COVID-19]” by targeting specific “high-hazard industries or work tasks” with greater frequency of close contact between workers for on-site inspections, outreach, and compliance assistance related to COVID-19 prevention and response measures. While federal OSHA’s NEP technically does not apply to state plans, OSHA is strongly encouraging them to do so; and state plans must submit within 60 days a notice of intent indicating whether they intend to adopt same or similar initiatives.

The NEP specifically targets certain industries based on public enforcement data, such as complaints, inspections and COVID-19-related violations, where the data reflects that workers are expected to perform tasks associated with exposure to COVID-19. The NEP lists numerous “primary” targets, which are divided up as either healthcare or non-healthcare employers.

Primary healthcare employers include:

• Doctors’ and dentists’ offices
• Home healthcare services
• Ambulance services
• Hospitals, including psychiatric and substance abuse hospitals
• Nursing care facilities
• Residential intellectual and developmental disability facilities
• Continuing care retirement communities
• Assisted living facilities for the elderly

Primary non-healthcare employers include:

• Meat processing facilities
• Supermarkets and grocery stores
• Discount department stores
• Warehousing and storage facilities
• Temporary help services (if those services occur at healthcare facilities or other high-risk facilities)
• Restaurants
• Correctional facilities

The NEP adopts a phased approach to scheduling inspections. OSHA will give highest priority to fatality inspections related to COVID-19, followed by inspections related to employee exposure to COVID-19-related hazards. Inspections will either be on-site or utilize a combination of on-site and remote methods. The NEP will also include increased follow-up inspections to ensure abatement compliance and additional focus on ensuring workers are protected from retaliation.

On the same day it issued the NEP, OSHA also released an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (ERP), which provides additional guidance to OSHA offices and Compliance Safety and Health Officers (CSHOs) handling COVID-19-related complaints and reports. This ERP “prioritizes enforcement and focuses on employers that are not making good faith efforts to protect workers.” The ERP also instructs CSHOs that “all inspections should be conducted in a manner to achieve expeditious issuance of COVID-19-related citations and abatement.”

What This Means for Employers

Employers in the primary target industries now face a greater likelihood of upcoming inspections. As a result, those employers should carefully review all safety measures they have already taken and compare those to measures recommended by federal, state and local authorities. In addition, all employers should keep an eye out for additional guidance from OSHA. It appears likely that OSHA will soon release an emergency temporary standard (ETS) related to COVID-19 pursuant to President Biden’s January 21, 2021, Executive Order; and this ETS will likely define employers’ obligations with respect to COVID-19-related safety measures.

Faegre Drinker Biddle & Reath will continue to monitor and provide insights with respect to OSHA’s NEP and forthcoming emergency standards as well as other COVID-19 related topics. Insights will be updated on our COVID-19 Resource Center.