On March 12, in response to President Biden’s executive order on protecting worker health and safety, OSHA launched a new COVID-19 National Emphasis Program (NEP). The new directive outlines policies and procedures for minimizing worker exposures to COVID-19 by targeting certain industries and worksites considered to be high-risk/high-hazard, where workers may have a high frequency of close contact exposure.
The program also prioritizes whistleblower protection enforcement for those who may face retaliation for filing complaints about unsafe or unhealthy conditions.
What are NEPS? NEPs are temporary programs that focus OSHA’s resources on particular hazards and designated high-hazard industries. This NEP advises that OSHA will use targeted inspections, outreach, and compliance assistance to identify and reduce or eliminate COVID-19 exposures in the workplace. It went into effect immediately upon publication.
Primary Targeted Industries
Primary targets for programmed inspections are listed in Appendix A of the NEP, organized in separate tables for healthcare and non-healthcare facilities. Selected healthcare NAICS codes listed as primary targets include:
- 622110 – General Medical and Surgical Hospitals
- 621910 – Ambulance Services
- 621610 – Home Health Care Services
- 623312 – Assisted Living Facilities for the Elderly
Non-healthcare primary targets include, but are not limited to:
- 311xxx – Food Manufacturing
- 312xxx – Beverage Manufacturing
- 321xxx – Wood Product Manufacturing
- 722511 – Full-Service Restaurants
- 493110 – General Warehousing and Storage
- 452112 – Discount Department Stores
- 445110 – Supermarkets and Other Grocery (except Convenience) Stores
The NEP also lists multiple secondary NAICS targets for both healthcare and non-healthcare facilities in Appendix B. To see the full lists of primary and secondary targets, check out Appendix A and B of the NEP, respectively.
Updated Interim Enforcement Response Plan
OSHA has also released an updated interim Enforcement Response Plan, which rescinds an earlier memorandum that took effect May 26, 2020. The update indicates how the agency’s compliance officers will handle complaints, referrals and serious illness reports related to COVID-19. It prioritizes the use of on-site workplace inspections (where practical) and limits remote-only inspections, or a combination of on-site and remote methods.
A typical OSHA inspection includes an opening conference once at the worksite, document request and review, walk through, witness interviews and a closing conference. This NEP gives specific guidance on these inspection procedures and the issuance of citations. It also states that OSHA will distribute anti-retaliation information during inspections, increase its outreach opportunities, and promptly refer allegations of retaliation to the Whistleblower Protection Program.
To assess the effectiveness of this NEP, the Directorate of Enforcement Programs will review the program within six months.
OSHA acknowledged that some state plans adopted emergency standards or guidelines with enforcement plans similar to the NEP (California, Michigan, Oregon and Virginia). Virginia has since established a permanent COVID-19 standard.
OSHA strongly encouraged the other state plans to adopt the federal NEP but it is not required. States must notify OSHA of their intention to adopt the NEP within 60 days of its issuance.