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OSHA increasing COVID-19-Related inspections with new NEP

While many employers anticipated an Emergency Temporary Standard (ETS) regarding COVID-19 on March 15 per President Biden's Executive Order, OSHA took an unusual step and launched a COVID-19 National Emphasis Program (NEP) on March 12 before issuing the ETS. It is expected that an ETS will be forthcoming, but the only official statement from OSHA is that the agency is "taking the time to get this right."

NEPs are temporary programs that focus OSHA resources on particular hazards and high-hazard industries. The COVID-19 NEP focuses enforcement efforts on companies that put the largest number of workers at serious risk of contracting the coronavirus and is effective immediately. The program also prioritizes employers that retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law. It will include follow-ups to workplace inspections that took place last year.

The program will remain in effect for up to one year, though OSHA has the flexibility to amend or cancel the program as the pandemic changes. It requires that 5% of each OSHA region's total inspections relate to COVID-19. This would be approximately 1,600 inspections plus those under State Plans.

Some State Plans have already adopted similar NEPs. While it does not require it, OSHA strongly encourages those that have not to adopt this NEP. State Plans must notify federal OSHA of their intention to adopt the NEP within 60 days after its issuance.

In a related action, OSHA also rescinded enforcement guidance issued May 26 and updated its Interim Enforcement Response Plan to prioritize the use of on-site workplace inspections where practical, or a combination of on-site and remote methods. OSHA will only use remote-only inspections if the agency determines that on-site inspections cannot be performed safely. While some thought that the Biden administration would alter the employer-friendly work-relatedness guidance issued last summer, it was not changed.

Industries covered by the NEP

While inspections under the COVID-19 NEP will include some follow-up inspections of worksites previously inspected by OSHA in 2020, it will principally focus on establishments in industries identified on targeting lists OSHA will develop. The directive creates three lists of covered workplaces: high-risk healthcare establishments, high-risk non-healthcare establishments, and supplemental industries for non-healthcare in essential critical infrastructure The third listing has lower exposure risk characteristics than the first two. Area Offices may also "add establishments to the generated master lists based on information from appropriate sources." See the list at the end of this article for specific industries in all three categories, or Appendix A and B in the NEP).

Unprogrammed COVID-19-related inspections (inspections triggered by fatalities, complaints, or referrals) will be prioritized at worksites where employees have a high frequency of close contact exposures. This will focus on workplaces with high numbers of COVID-19-related complaints or known COVID-19 cases, including correctional facilities, workplaces in critical industries located in communities with increasing rates of COVID-19, and workplaces where workers are in close contact to each other or the public (e.g., meatpacking plants, poultry processing facilities, and grocery stores).

It's important to note that there will be no small business (establishments with fewer than 10 workers) exception under the NEP. If a site is also on OSHA's Site-Specific Targeting ("SST") list when an inspection is initiated under the NEP, it will have a combined wall-to-inspection and COVID-19 inspection. The NEP includes a pre-inspection checklist for compliance officers, which is similar to that used in earlier inspections.

Until an ETS is established, inspections will cite employers under existing OSHA standards or the general duty clause for COVID-19-related safety hazards. "In the event that OSHA issues an emergency temporary standard, those provisions will take precedence over citations of the general duty clause."

What employers can do

Employers can begin by reviewing the complete list of targeted industries to determine if their industry is on the list. If it is, the employer should take steps to ensure it is ready for an unannounced programmed COVID-19-related inspection by reviewing its COVID-19 safety and health procedures and documentation.

Even if an employer is not in a high-risk industry, it makes sense to anticipate and prepare for an ETS related to COVID-19. Reviewing and updating their COVID-19 safety documents, programs, and procedures in light of current CDC and OSHA guidance as well as compliance with existing OSHA standards that are frequently cited for COVID-related violations.

Targeted Healthcare Industries by 2017 NAICS Code:

Targeted Non-Healthcare Industries by 2017 NAICS Code

*Establishments within the Temporary Help Services (NAICS 561320) industry should not be automatically included in the targeting list for programmed inspections. Although this industry has been among the top industries with OSHA enforcement activities related to COVID-19, this has primarily occurred where services occurred at host healthcare facilities and other high-hazard workplaces. Therefore, to effectively address SARS-CoV-2 hazards for Temporary Help Services, where OSHA is conducting an inspection for other purposes, a COVID-19-related inspection shall be opened for all hazardous conditions observed in plain view (such as, for example, temporary employees working in high exposure areas without adequate PPE).

Supplemental List of Essential Critical Infrastructure Industries by NAICS Category:

*For certain industries such as these (Postal Services, NAICS 491110, Ship Building and Ship Repairing, NAICS 336611, and Construction, NAICS 236xxx, 237xxx, 238xxx), some of which have had a large number or high rate of COVID-19-related complaints in some communities during 2020, Area Directors should use discretion based on local information about COVID-19-related workplace exposures, to determine whether an industry should be considered in the generating of their master lists of establishments.