Many of President Biden’s immediate priorities relate to the federal government’s response to the COVID-19 pandemic. These include worker protection measures, which generally fall within the purview of the Occupational Safety and Health Administration (OSHA). Executive Order (EO) 13999 of January 21, 2021 (Executive Order on Protecting Worker Health and Safety) directs OSHA to rapidly enhance COVID-19 protection activities. The EO directed OSHA to update worker protection guidance to employers within two weeks, which OSHA met by publishing “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which I discussed HERE.
The EO also directs OSHA to review COVID-19-related enforcement (I wrote about the first version of the agency enforcement plan HERE), and to issue a national program to “focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles.” On March 12, 2021, OSHA met this requirement by revising its existing enforcement plan, and by issuing “National Emphasis Program – Coronavirus Disease 2019 (COVID-19)” (NEP; Directive 2021-01 (CPL-03)). The remainder of this note summarizes these actions.
How is OSHA revising its COVID-19 enforcement plan?
OSHA's COVID-19 plan directs its staff how to apply the agency’s enforcement of workplace safety and health requirements in ways to reduce the risk of workplace transmissions of SARS-CoV-2 (which causes COVID-19). The agency's updated Response Plan prioritizes enforcement and focuses on employers that are not making good faith efforts to protect workers. A memo from OSHA's Acting Director of Enforcement Programs provides the following summary of OSHA's updated strategy:
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“OSHA will continue to implement the U.S. Department of Labor's (DOL) COVID-19 Workplace Safety Plan to reduce the risk of COVID-19 transmission to OSHA CSHOs during inspections.[2]
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Pursuant to [the NEP discussed below], OSHA will prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19. In addition, this NEP will include the added focus of ensuring that workers are protected from retaliation.
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Where practical, OSHA will perform on-site workplace inspections:
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OSHA's goal is to identify exposures to COVID-19 hazards, ensure that appropriate control measures are implemented, and address violations of OSHA standards and the General Duty Clause.
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OSHA will at times use phone and video conferencing, in lieu of face-to-face employee interviews, to reduce potential exposures to CSHOs. In instances where it is necessary and safe to do so, in-person interviews shall be conducted.
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OSHA will also minimize in-person meetings with employers and encourage employers to provide documents and other data electronically to CSHOs.
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In all instances, Area Directors (AD) will ensure that CSHOs are prepared and equipped with the appropriate precautions and personal protective equipment (PPE) when performing on-site inspections related to COVID-19 and throughout the pandemic.
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To the extent possible, all inspections should be conducted in a manner to achieve expeditious issuance of COVID-19-related citations and abatement.
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In cases where on-site inspections cannot safely be performed (e.g., if the only available CSHO has reported a medical contraindication), the AD will approve remote-only inspections that may be conducted safely.
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Inspections conducted entirely remotely will be documented and coded N-10-COVID-19 REMOTE”
The new memo includes an attachment with “specific guidance” for workplace risk levels (high versus low potential for infections); application of OSHA’s general complaint, inspection, citation and enforcement authority to these cases (including extensive references to specific OSHA standards and policies); and coding and tracking guidance. Two additional attachments present standardized letters to employers. A fourth presents the text of a standardized citation violation for COVID-related violations of the Employers General Duty Clause. A fifth provides additional standardized citations for COVID-related resources.
What does the NEP direct?
- What are NEPs?
NEPs are temporary programs that focus OSHA's resources on particular hazards and high-hazard industries, usually for predetermined periods of several years. OSHA’s management evaluates the agency’s inspection and injury and illness (I&I) data, National Institute for Occupational Safety and Health (NIOSH) reports, peer-reviewed literature, and other available information sources to identify hazards to target with augmented enforcement efforts. The agency also responds to external events, such as President Biden’s EO. Recent NEPs address Amputations in Manufacturing Industries (CPL 03-00-022; 12/10/2019), and Respirable Crystalline Silica (CPL 03-00-023; 2/4/20).
- What does the new COVID-19 NEP direct?
This NEP targets establishments where workers faced increased potential exposure to COVID-19 hazards compared with workplaces in general, and those that put the largest number of workers at serious risk. It also includes an added focus on protecting workers from retaliation from employers for asserting their rights or complaining to OSHA. As stated in the NEP, OSHA’s goal is to “significantly reduce or eliminate worker exposures to SARSCoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures and therefore, controlling the health hazards associated with such exposures.”
The practical expression of this goal is for each OSHA region to apply at least 5% of all inspection resources to COVID-19 issues – the NEP notes that this should yield 1600 such inspections OSHA-wide. The NEP also directs agency personnel to focus on “certain critical industries until further notice.” Appendix A to the NEP identifies its primary priorities (identified by North American Industry Classification System (2017 NAICS) codes) as:
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Healthcare (Offices of Physicians (except Mental Health Specialists); Offices of Dentists; Home Health Care Services; Ambulance Services; General Medical and Surgical Hospitals; Psychiatric and Substance Abuse Hospitals; Specialty (except Psychiatric and Substance Abuse) Hospitals; Nursing Care Facilities (Skilled Nursing Facilities); Residential Intellectual and Developmental Disability Facilities; Continuing Care Retirement Communities; and Assisted Living Facilities for the Elderly)
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Non-healthcare (Meat Processed from Carcasses; Animal (except Poultry) Slaughtering; Poultry Processing; Supermarkets and Other Grocery (except Convenience) Stores; Discount Department Stores; General Warehousing and Storage; Temporary Help Services; Full-Service Restaurants; Limited-Service Restaurants; and Correctional Institutions)
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Appendix B lists additional secondary priorities (also by NAICS codes):
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Non-healthcare critical infrastructure (Agriculture, Forestry, Fishing and Hunting Food and Agriculture; Construction of Buildings; Heavy and Civil Engineering Construction; Specialty Trade Contractors; Food Manufacturing; Beverage Manufacturing; Wood Product Manufacturing; Paper Manufacturing; Asphalt Paving, Roofing, and Saturated Materials Manufacturing; Other Petroleum and Coal Products Manufacturing; Chemical Manufacturing; Plastics and Rubber Product Manufacturing; Nonmetallic Mineral Product Manufacturing; Primary Metal Manufacturing; Fabricated Metal Product Manufacturing; Industrial Machinery Manufacturing; Computer and Electronic Product Manufacturing; Electrical Equipment, Appliance, and Component Manufacturing; Transportation Equipment Manufacturing; Wood Kitchen Cabinet and Countertop Manufacturing ; Other Miscellaneous Manufacturing; Nursery, Garden Center, and Farm Supply Stores; Additional Food and Beverage Stores; General Merchandise Stores, including Warehouse Clubs and Supercenters; Urban Transit Systems; Interurban and Rural Bus Transportation; School and Employee Bus Transportation; Special Needs Transportation; Postal Service; Industrial Design Services; Other Electronic and Precision Equipment Repair and Maintenance; Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance)
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Each region is to develop lists of establishments in these sectors, and also has discretion to add or delete particular facilities where appropriate.
Each region is to schedule inspections of identified facilities, in addition to “unprogrammed” inspections that follow reported injuries and illnesses that have led to hospitalizations.
The NEP provides procedural guidance, which is consistent with OSHA’s general inspection, citation and enforcement procedures. In addition, all OSHA entities are directed to ensure that the agency’s whistleblower protections apply fully to COVID-related situations (I wrote about OSHA’s whistleblower protection program HERE). Additional appendices provide text of standardized notifications and citations.
What happens now?
These new OSHA enforcement programs reflect the Biden Administration’s heightened focus on COVID-19. They will undoubtedly continue to evolve as the pandemic proceeds.
Self-Assessment Checklist
Does the organization have operations that are in sectors listed by OSHA as presenting high hazards for COIVD-19 infections?
Has the organization implemented (or at least prepared) adequate information and precautionary measures (e.g., equipment and procedures recommended by OSHA, CDC and EEOC)?
Is the organization ready to assess employee illnesses for possible COVID-19 infections, and if any arise to be able to evaluate whether the illnesses are work-related?
Has the organization identified work-related COVID-19 illnesses among its workers?
Is the organization ready for a COVID-related inspection by OSHA?
Where do I go for more information?
Information available via the Internet includes:
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com