{"id":4113,"date":"2021-03-15T08:30:36","date_gmt":"2021-03-15T12:30:36","guid":{"rendered":"https:\/\/oshadefensereport.com\/?p=4113"},"modified":"2026-02-27T22:43:58","modified_gmt":"2026-02-27T22:43:58","slug":"osha-announces-covid-19-national-emphasis-program-and-updated-interim-enforcement-response-plan","status":"publish","type":"post","link":"https:\/\/www.connmaciel.com\/osha-defense-report\/osha-announces-covid-19-national-emphasis-program-and-updated-interim-enforcement-response-plan\/","title":{"rendered":"OSHA Announces COVID-19 National Emphasis Program and Updated Interim Enforcement Response Plan"},"content":{"rendered":"

By Conn Maciel Carey’s COVID-19 Task Force<\/a><\/strong><\/em><\/p>\n

While OSHA is expected today, March 15th, to confirm that it will issue a COVID-19 Emergency Temporary Standard<\/a> (ETS), and to get that ETS released within a month, there were also a couple of important developments last week regarding OSHA\u2019s approach to COVID-19 enforcement.<\/p>\n

On Friday afternoon, March 12th, OSHA launched a COVID-19 National Emphasis Program<\/a> (\u201cCOVID-19 NEP\u201d) to:\"\"<\/a><\/p>\n

\u201cfocus its inspection and enforcement efforts on companies that put the largest number of workers at serious risk of contracting the virus,\u201d<\/em> as well as prioritizing employers that \u201cretaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.\u201d<\/em><\/p><\/blockquote>\n

This move by OSHA was not unexpected.\u00a0 As we previously shared, Pres. Biden\u2019s Day-1 OSHA Executive Order on Protecting Worker Health and Safety<\/a> (the same EO that called for the COVID-19 ETS), separately called for OSHA to issue a COVID-19 NEP.<\/p>\n

Goals of the COVID-19 NEP<\/u><\/strong><\/p>\n

In today\u2019s announcement<\/a> about the COVID-19 NEP, OSHA explained that \u201cthe goal of this NEP is to significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures<\/strong> and therefore, controlling the health hazards associated with such exposures.\u201d<\/em> \u00a0The NEP includes \u201can added focus to ensure that workers are protected from retaliation\u201d<\/em><\/strong> and are accomplishing this by preventing retaliation where possible, distributing anti-retaliation information during inspections and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.<\/p>\n

Industries and Workplaces Covered by the NEP<\/u><\/strong><\/p>\n

OSHA also explained that inspections under the COVID-19 NEP will include some follow-up inspections of worksites previously inspected<\/strong> by OSHA in 2020, but principally will focus on establishments in industries identified on targeting lists <\/strong>OSHA will develop now.\u00a0 The NEP covers a broader set of workplaces than seems consistent with the goals of the NEP.\u00a0 The directive creates three different lists of covered workplaces<\/em><\/strong> \u2013 high risk healthcare establishments and high risk non-healthcare establishments (which is how the NEP has been described), and also a third list of \u201cSupplemental Industries for non-Healthcare in Essential Critical Infrastructure\u201d that does not have the same high exposure risk characteristics of the first two lists.\u00a0 The industries covered by these three lists are included at the bottom of this email.\u00a0 Area Offices may also \u201cadd establishments to the generated master lists based on information from appropriate sources (e.g., local knowledge of establishments, commercial directories, referrals from the local health department, or from other federal agencies with joint jurisdictions, such as the Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Agriculture (USDA), media referrals or previous OSHA inspection history).\u201d<\/em><\/p>\n

The directive for the NEP explains that OSHA\u2019s goal is to continue performing a \u201chigh percentage of COVID-19 inspections (at least 5%) of the Region\u2019s total assigned inspection goal (which is approximately 1,600 inspections OSHA-wide), focusing Agency resources on workplace exposures to SARS-CoV-2 in certain critical industries until further notice.<\/em><\/strong>\u201d\u00a0 Unprogrammed COVID-19-related inspections will continue to be conducted at worksites where employees have a high frequency of close contact exposures.\u00a0 OSHA anticipates that the majority of the inspections will continue to occur in general industry, particularly in healthcare,<\/em><\/strong> based on current OSHA enforcement data showing higher COVID-19-related complaints, referrals and severe incident reports at healthcare worksites.<\/p>\n

One important issue under the NEP that employers should note is that inspections initiated under this NEP at sites that also happen to be on OSHA\u2019s Site-Specific Targeting (\u201cSST\u201d) list, will see a combined inspection<\/em><\/strong> \u2013 the COVID-19 inspection and the wall-to-wall inspection covered by the SST Program.\u00a0 Also note that there is no \u201csmall business\u201d exception<\/em><\/strong> \u2013 establishments with fewer than 10 workers are still subject to inspection under this NEP.\u00a0 Like many other NEPs, Fed OSHA is strongly encouraging all of the State OSH Plans to adopt the COVID-19 NEP<\/strong> or a similar enforcement emphasis program.\u00a0 The State Plans are required to notify Fed OSHA of their intentions whether to adopt the NEP within 60 days after its issuance.<\/p>\n

Effective Date and Duration of the NEP<\/u><\/strong><\/p>\n

OSHA explained that the COVID-19 NEP is effective immediately<\/em><\/strong> (as of today, March 12, 2021), despite the 90-day outreach period that typically precedes inspections under a new NEP, to allow OSHA time to inform the regulated community about the scope and substance of the new program.\u00a0 The agency reasoned that:<\/p>\n

\u201cOSHA has continually conducted outreach at the National, Regional, and Area Office levels throughout the duration of the pandemic outbreak. Thus, the 90-day outreach threshold has been met and Area Offices may begin to initiate inspections under this NEP on the effective date.<\/em>\u201d<\/p><\/blockquote>\n

The COVID-19 NEP is scheduled to remain in effect for up to one year<\/strong> from today, though OSHA has the flexibility to amend or cancel the program as the pandemic subsides.<\/p>\n

While technically in effect right now, OSHA directed its field offices to complete compiling those targeting lists over the next two weeks.\u00a0 So programmed inspections under the NEP will not begin until the end of March, at the earliest, but unprogrammed activities (inspections triggered by fatalities, complaints, or referrals) may proceed immediately.<\/p>\n

New Procedures for COVID-19 Inspections<\/u><\/strong><\/p>\n

Simultaneously with the \"\"<\/a>announcement of the COVID-19 NEP, OSHA also announced that it has updated its Interim Enforcement Response Plan<\/a>, which details how OSHA\u2019s field staff should conduct COVID-related inspections.\u00a0 There was nothing too earth shattering in the updated response plan, and that is a good thing.\u00a0 This is the tool OSHA has used to outline its COVID-19 recordkeeping guidance, and we have been anxious to see whether Biden\u2019s OSHA would depart from the fairly generous work-relatedness guidance issued last summer.\u00a0 They did not disturb that guidance in the updated response plan today.<\/p>\n

The update response plan did provide a lot more detail around inspection protocols and violations to look OSHA\u2019s field staff will look out for.\u00a0 The biggest takeaway is that it directs Area Offices to prioritize the use of on-site workplace inspections, whereas a lot of activity had been remote to this point.\u00a0 OSHA states that it will use remote-only inspections only if the agency determines that on-site inspections cannot be performed safely.\u00a0 Otherwise, there is not much that changed (at least in writing) about what OSHA is looking for during this inspections and how they will conduct the inspections.<\/p>\n

Appendices A and B of the NEP – Industry Target Lists
\n<\/u><\/strong><\/p>\n

Targeted Healthcare Industries (by NAICS Code):<\/strong><\/p>\n