OSHA’s COVID-19 National Emphasis Program

By Cotney Attorneys & Consultants.

The main goals of the NEP are to protect employees in high-hazard industries.

On January 21, 2021, President Joe Biden issued an executive order that directed the Department of Labor (DOL) and the Occupational Health and Safety Administration (OSHA) to address the COVID-19 pandemic by providing revised guidance, reviewing current enforcement efforts, and launching a nationwide focus on enforcement. In addition, President Biden instructed the DOL to decide if an emergency temporary standard (ETS) on COVID-19 was warranted and, if so, to issue that by March 15, 2021.

Although the DOL has not issued an ETS to date, on March 12, 2021, OSHA announced a national emphasis program (NEP) concerning COVID-19. The main goals of the NEP are to protect employees in high-hazard industries and to ensure that any employees who voice concerns about COVID-19 safety will not be subject to retaliation.

According to Jim Frederick, principal deputy assistant secretary of labor for Occupational Safety and Health, the “program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure.”

More inspections

The NEP went into immediate effect, and it states that 5% of all inspections in each OSHA region must relate to COVID-19. That translates to about 1,600 total inspections nationwide.

According to the NEP, OSHA must focus on high-hazard industries for programmed health and safety inspections. Such industries refer to those with high numbers of complaints and inspections, as well as fatalities and violations related to COVID-19.  High-hazard industries may include healthcare, food and agriculture, construction, energy, and manufacturing facilities.

The NEP also calls for OSHA to prioritize unprogrammed inspections for referrals, fatalities, and complaints related to the pandemic.

Advice for employers

Employers should first review the NEP and determine if they work in what is considered a high-hazard industry. This determination will give companies an idea if they can expect more scrutiny. Some stakeholders are questioning the validity of the high-hazard list, especially as vaccines are rolling out. However, whether they are deemed high hazard or not, all employers should make an effort to review COVID-19 safety protocols, procedures, and documents to ensure they are in compliance with the most recent directives from OSHA and the Centers for Disease Control and Prevention (CDC).

In addition, employers should follow all anti-retaliation guidelines. Under the NEP, OSHA will refer all retaliation allegations to the Whistleblower Protection Program. It also plans to reinforce anti-retaliation by providing applicable information via inspections and other outreach opportunities.

The DOL may still issue an ETS, but in the meantime, it is advisable for all businesses to assess and enforce their COVID-19 health and safety measures and prepare for a rise in OSHA inspections.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Cotney Attorneys & Consultants is an advocate for the roofing industry and general counsel of the National Roofing Contractors Association. For more information, please visit www.cotneycl.com or call 866.303.5868.