OSHA Responds to Executive Order with New Covid-19 National Emphasis Program

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In a January 2021 Executive Order, President Biden directed the Occupational Safety and Health Administration (OSHA) to establish a COVID-19 National Emphasis Program and asked the agency to determine by March 15, 2021 whether to issue an Emergency Temporary Standard tailored to the pandemic.  A report from the Office of Inspector General of the Department of Labor in February first tasked OSHA for conducting about 50% fewer inspections from February 2020 through October 2020 compared with the same period a year earlier and for not making in-person visits for many of those inspections.  The current National Emphasis Program issued as effective on March 12, 2021, is responsive to those directives.  The Program will remain in effect for up to one (1) year from its issuance.  In the COVID-19 pandemic’s first 12 months, only about 10% of federal workplace safety inspections were virus-related, and only four violations of the General Duty Clause were found.  Most of the violations found pertained to respiratory protection rules, and secondly, for violations of requirements to record worker deaths or illness.  The previous Administration had determined that an Emergency Rule specific to COVID-19 was not necessary because OSHA could rely on the General Duty Clause.  

Announcing the National Emphasis Program, OSHA said it would adjust its enforcement strategy to conduct on-site inspections where practical.  Remote-only inspections would be conducted if a determination is made that it is not safe to send inspectors to a workplace.  The new enforcement directive sets a goal for COVID-19 inspections to account for at least 5% of each OSHA regional office’s annual inspections.  For the selection of inspection targets, OSHA will create lists of employers in selected industries – such as medical facilities, warehouses, stores and meat processing plants – and provide them to local OSHA offices.  If the area office does not meet the 5% with unprogrammed inspections (fatalities, hospitalizations, and complaints) and follow-up inspections, it will schedule inspections from the target lists.

On the same day, March 12, 2021, OSHA updated its Interim Enforcement Response Plan to prioritize the use of on-site workplace inspections where practical, and to prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19.  This directive encourages a written pandemic plan, as recommended by the Centers for Disease Control (CDC), by stating that such pandemic plans “should be established, as recommended by the CDC.”  The directive suggests that OSHA inspectors review employee training records, including any records of training related to COVID-19 exposure prevention or in preparation for a pandemic.  An attachment provides a checklist for various industries in developing preparedness plans.  Part of the review should include that of the employer’s injury and illness records to identify any workers with recorded illnesses or symptoms associated with the exposure to persons with suspected or confirmed COVID-19.  When considering citations, inspectors should evaluate whether the employer made good-faith efforts to comply with applicable OSHA standards and, in situations where compliance was not possible during the pandemic, to ensure that employees were not exposed to hazards from tasks, processes, or equipment for which they were not adequately trained. 

This is part of our April 2021 Newsletter.

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