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Employers nationwide and those managing workplace safety have had their eyes on the U.S. Occupational Safety and Health Administration, which in accordance with directives from the Biden administration has been making guidance and enforcement changes to better protect workers from COVID-19.
On March 12, the agency launched its National Emphasis Program to focus its enforcement efforts on industries with the largest number of workers at serious risk of contracting the coronavirus. The program will remain in effect for up to one year, though OSHA said it has the flexibility to amend or cancel it as the pandemic subsides.
The enforcement announcement arrived as employers and watchdogs awaited an emergency COVID-19 safety standard, which some experts had expected under an executive order issued by President Joe Biden on Jan. 21 that asked OSHA by March 15 to consider establishing such a standard (see related story).
While many believe a standard is still in the works, experts say the new enforcement program represents a resource management strategy that will divert more attention to industries where workers are more exposed to COVID-19, because they interact with the public more or because social distancing is more difficult, as in some manufacturing settings.
Without a specific standard that dictates what employers must do to prevent COVID-19, experts say the program could result in citations justified by violations of regulations such as the general duty clause, a catch-all rule that requires employers to maintain a safe workplace free of hazards for employees. Standards that mandate respiratory protection and training, personal protective equipment and record-keeping could also be cited.
The agency is also leaning on new guidelines, issued Jan. 29 in accordance with the president’s executive order, that reiterated the need for such mitigations as mask-wearing and social distancing in the workplace to prevent COVID-19 outbreaks. Meanwhile, the NEP states that “in the event that OSHA issues an emergency temporary standard, those provisions will take precedence over citations of the general duty clause.”
Even without a COVID-19 standard, “the agency has more than enough regulatory authority to cite a large number of employers for not following rules and regulations that are in the books,” said Andrew Brought, a Kansas City, Missouri-based attorney with Spencer Fane LLP.
The NEP program “is less a shift in policy and more a shift in resourcing,” said Courtney Malveaux, Richmond, Virginia-based principal and co-leader of the workplace safety and health practice group at Jackson Lewis P.C. “This is hunting where the ducks are. … The agency has identified health care providers and higher-hazard employers in terms of COVID.”
The program will target 21 industry codes in the North American Industry Classification System, with 11 codes pertaining to health care facilities, such as nursing homes, hospitals and dental offices. The remaining 10 codes pertain to other high-risk work sites, including restaurants, supermarkets, correctional facilities and meat processing plants.
The targets named in the NEP have “demonstrated to be at a higher risk” over the past year, according to John Ho, New York-based chair of the OSHA practice for Cozen O’Connor P.C. “It makes sense to me,” he said.
Employers can also expect more on-site inspections, which were curbed during the pandemic due to safety concerns. According to OSHA documents, the NEP program “reaffirms OSHA’s adherence to longstanding inspection policy that relies predominantly on on-site (in person) presence for most inspections.”
With an increase in federal funding — the latest COVID-19 stimulus bill earmarked $75 million in pandemic-related funding to the agency — the new program could result in up to 2,000 more inspections a year for targeted employers, said Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP. “They are not just talking about enforcement,” he said. “They are putting a lot of money and effort behind it.”
The program’s launch follows a Feb. 25 report from the U.S. Department of Labor Office of Inspector General that found inefficiencies in OSHA’s handling of inspections during the pandemic.
Specifically, investigators found that while OSHA received 15% more workplace safety complaints between Feb. 1, 2020, and Oct. 2, 2020, it performed 50% fewer inspections than during a similar period in 2019.
“Due to the increase in complaints, reduction in inspections, and most inspections not being conducted onsite, there is an increased risk that OSHA has not been providing the level of protection that workers need at various job sites,” the report stated, adding, “we are concerned that since most OSHA inspections were done remotely during the pandemic, hazards may go unidentified and unabated longer, with employees being more vulnerable to hazardous risk exposure while working.”
OSHA said the new surge in inspections will include “some follow-up inspections of worksites inspected in 2020.”
The March 15 deadline passed without the U.S. Occupational Safety and Health Administration delivering details of an expected emergency temporary standard for COVID-19 workplace safety, as it had been directed to do under an executive order.