As a part of its ongoing efforts to increase workplace attention on COVID-19, OSHA recently released a new COVID-19 National Emphasis Program (NEP), signaling a commitment to expand its inspection and enforcement efforts to protect workers at high risk for contracting the virus.
The NEP indicates that OSHA will target its inspections on high-risk industries with the goal of significantly reducing or eliminating worker exposure to COVID-19. To support this effort, OSHA developed lists of specific industries that will be targeted for inspection. The highest priority industry continues to be health care, but there are a number of manufacturing industries included in the NEP target lists, such as:
- Meat Processing
- Food and Beverage Manufacturing
- Chemical Manufacturing
- Plastics and Rubber Product Manufacturing
- Primary Metal Manufacturing
- Petroleum and Coal Products Manufacturing
- Industrial Machinery Manufacturing
- Transportation Equipment Manufacturing
OSHA will develop programmatic inspection priorities by focusing on the industries listed in the NEP. It will further identify specific establishments for targeted inspection by reviewing 2020 Form 300A injury and illness data.
In addition to programmatic inspections under the NEP, OSHA will continue to perform unprogrammed inspections, particularly at facilities that have experienced COVID-19 related fatalities, and then at facilities with alleged employee exposures to COVID-19 related hazards. The NEP also establishes procedures for follow-up inspections of facilities that have already been inspected as a result of a COVID-19 hazard.
While OSHA has not developed an emergency temporary standard with regard to COVID-19 (at least not yet), it has issued numerous guidance documents that we have covered on the blog. The most recent COVID-19 guidance was posted on January 29, 2021. OSHA continues to rely on this guidance and existing statutes and regulations to support the issuance of citations for COVID-19 workplace deficiencies. In fact, in referencing the potential for citations, the NEP makes specific reference to the OSH Act’s General Duty Clause, which requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA has used the General Duty Clause to cite employers for COVID-19 related hazards, and this reference in the NEP signals a continued willingness to do so.
The NEP became effective on March 12, 2021, with inspections under the NEP commencing immediately and industry targeting to begin within at least two weeks (or by March 26, 2021). Based on this, we can expect to see heightened inspection activity related to COVID-19, particularly in industries listed in the NEP.
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