OSHA focuses enforcement efforts on higher-risk workplaces amid pandemic
On March 21, 2021, the Occupational Safety and Health Administration published a National Emphasis Program (NEP) to focus its enforcement efforts on preventing employees from contracting COVID-19 and protecting employees who report unsafe working conditions. A national emphasis program, in general, is a method by which OSHA temporarily focuses its resources on a specific hazard or a highly hazardous industry. The newly published NEP targets “establishments that have workers with increased potential exposure to [contracting COVID-19] and that puts the largest number of workers at serious risk.” The goal of the NEP is to reduce or eliminate the risk for these industries by focusing OSHA’s enforcement efforts on “a combination of inspection targeting, outreach to employers, and compliance assistance.”
Industries, worksites targeted for inspections
As to be expected, the NEP identifies many healthcare-related industries as those with a high risk of workers being exposed to COVID-19. Such industries include offices of physicians, dentists, home health care services, ambulance services, general medical and surgical hospitals, and other medical institutions. It also identifies non-healthcare industries that may be high-hazard, such as meat processors, grocery stores, discount department stores, warehouses, restaurants, and correctional institutions. It should be noted these are just some of the industries identified in the NEP.
OSHA carries out its enforcement activities, including worksite inspections to assess a company’s safety measures, through 10 regional offices. Each region has a yearly goal as to how many worksite inspections it performs. (OSHA’s overall goal is to perform approximately 1,600 inspections nationwide each year.) The NEP dictates that a “high percentage” (at least 5%) of these inspections should be focused on COVID-19 safety measures of companies in high-hazard industries. This means that if your company is perceived by OSHA to be a high risk for COVID-19 exposure, it has a greater risk of receiving a visit from an OSHA inspector.
The NEP provides that OSHA will continue to place the highest priority on inspecting worksites that have experienced a possible COVID-19 fatality. The next level of priority will be to inspect worksites about which OSHA has received allegations of workers being exposed to COVID-19 due to insufficient safety measures, such as a lack of PPE being provided to workers. OSHA anticipates that the majority of its inspections will occur in healthcare industries. This is based on OSHA’s enforcement data showing a higher number of COVID-19 complains, referrals, and incident reports coming from healthcare workplaces.
If your company is inspected under the NEP and cited for a violation, it may need to prepare for a continued relationship with the OSHA inspector. This is because the NEP calls for a follow-up inspection for any employer cited for a violation during an inspection related to a COVID-19 fatality.
Protections for whistleblowers
Finally, the NEP places an added emphasis on protecting “whistleblowers.” This means OSHA will focus its attention on investigating allegations that a company has retaliated against a worker who requests an OSHA inspection, reports COVID-19 exposure incidents, or reports unsafe working conditions related to COVID-19. The prohibition of retaliation is not new. However, if a company retaliates against an employee who makes a COVID-19-related complaint, it should anticipate being placed at the top of OSHA’s investigation list.
Now’s not the time to ease up on safety measures
After enduring the COVID-19 pandemic for over a year, and with vaccinations being widely distributed, employers may be tempted to ease workplace safety measures related to COVID-19.
OSHA’s NEP should be a warning bell that it would be unwise to give into that temptation. Employers need to continue to implement and enforce all necessary safety measures to protect workers from COVID-19 exposure because, sooner or later, it is likely that OSHA inspectors will come knocking.