President Biden’s January 21, 2021 Executive Order (EO) on COVID-19 tasked the Occupational Safety and Health Administration (OSHA) to: launch a national enforcement program, review and correct any shortcomings in their prior enforcement strategies and to determine whether any Emergency Temporary Standards (ETS) were necessary and, if so, to issue an ETS by March 15, 2021. The prior Administration had not issued an ETS, and was severely criticized by the Congress and labor unions.
On March 12, 2021, OSHA fulfilled some of the EO directives by publishing two COVID-19 initiatives to bolster safety enforcement during the remaining period of the pandemic, but it did not issue an ETS as expected. While the original deadline has now passed, OSHA reportedly is preparing to issue the ETS within the next few weeks and is currently working with the White House on regulatory review.
The first announced initiative is a COVID-19 National Emphasis Program (NEP) Directive, whose goal is to significantly reduce or eliminate worker exposures to COVID-19. The NEP will focus OSHA resources on target industries and worksites where employees may have a high frequency of close contact exposures. The NEP combines inspection-targeting, employer outreach and provides compliance assistance to promote safe workplaces.
Target or high-hazard industries include healthcare, meat and poultry processing, supermarkets, restaurants, discount department stores, general warehousing and storage facilities and correctional institutions. The NEP also includes an expansive secondary target industry list covering a myriad of manufacturing, construction, general merchandise stories, and transportation companies among others.
For the NEP, each OSHA Region will dedicate a high percentage of inspections (at least 5% or 1,600 nationally) to COVID-19 until further notice. OSHA expects that the majority of the inspections will continue to occur in healthcare establishments, based on their enforcement data showing higher COVID-19-related complaints, referrals and severe incident reports at healthcare worksites.
The NEP will also target worksites previously inspected for COVID-19-related hazards with follow-up inspections to ensure effective abatement. It is likely that OSHA will revisit any establishment that received COVID-19 citations. The NEP took effect immediately on March 12.
The second announced OSHA initiative is an update to its Interim Enforcement Response Plan that prioritizes 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. On March 18, 2021, OSHA will rescind the May 26, 2020, memorandum on this topic and this new guidance will go into and remain in effect until further notice.
The updated Interim Enforcement Response Plan relies heavily on Centers for Disease Control and Prevention (CDC) guidance on a wide-range of issues including: type of work activity, safe distancing, hygiene protocols and the ability of workers to wear face coverings and appropriate personal protective equipment (PPE). During investigations, OSHA will consult current CDC guidance in assessing potential workplace hazards and evaluate the adequacy of an employer’s protective measures for workers. Where the protective measures implemented by an employer are not as protective as those recommended by the CDC, OSHA will determine whether employees are exposed to a recognized hazard and whether there are feasible means to abate that hazard. This could be difficult for employers due to the evolving nature of guidance issued by both agencies as seen repeatedly during the course of the pandemic.
If OSHA issues an ETS as expected, all violations under the ETS will take precedence over general duty clause citations (the catch-all safety standard for OSHA). In all cases where the investigation determines that a condition exists warranting issuance of a general duty clause violation for an occupational exposure to COVID-19, the proposed citation will be reviewed with the OSHA Regional Administrator and the National Office prior to issuance. In general duty clause cases, the Regional Offices shall also consult with their Regional Solicitor. This higher- level review process indicates that OSHA wants a coordinated approach to COVID-related infractions of this type.
We will continue to monitor for relevant developments and update as needed. If you have any questions, please contact the author or your Epstein Becker Green attorney directly.