January 30, 2023

Volume XIII, Number 30


January 30, 2023

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OSHA COVID-19 National Emphasis Program Signals Increased Inspections and Enforcement

As published on March 12, 2021, OSHA is approaching COVID-19 enforcement by way of a COVID-19 National Emphasis Program (“COVID-19 NEP”).  The COVID-19 NEP went into effect immediately upon publication.

From our perspective, the COVID-19 NEP is consistent with President Biden’s January 2021 Executive Order (“EO”) calling for OSHA to consider a federal COVID-19 Emergency Temporary Standard and national emphasis program.  The EO required OSHA to issue any COVID-19 Emergency Temporary Standard on or before March 15, 2021; the Agency has not issued such a standard as of this writing.

The goal of OSHA’s new COVID-19 NEP, is “to significantly reduce or eliminate worker exposures to SARS-CoV-2 by targeting industries and worksites where employees may have a high frequency of close contact exposures and therefore, controlling the health hazards associated with such exposures.”  The NEP includes “an added focus to ensure that workers are protected from retaliation,” which is to be accomplished by, among other things, distributing anti-retaliation information during inspections and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.

Pursuant to the COVID-19 NEP, some worksites that were previously inspected by OSHA in 2020 will be the subject of follow-up inspections. OSHA will concentrate on establishments in industries identified on OSHA’s targeting lists: (1) high risk healthcare establishments, (2) high risk non-healthcare establishments, and (3) supplemental industries for non-healthcare in essential critical infrastructure. A list of these industries is provided at the bottom of this alert.

OSHA also recently announced that it has updated its Interim Enforcement Response Plan, which describes how OSHA’s field staff should conduct COVID-related inspections.  The updated response plan provides more detail on inspection protocols and highlights the types of violations that OSHA’s field staff will be looking for during inspections.  Notably, the new Interim Enforcement Response Plan directs Area Offices to prioritize the use of on-site workplace inspections. Previously, much of OSHA’s inspection and investigation activity had been remote.  OSHA is now taking the position that it will use remote inspections only if it determines that on-site inspections cannot be performed safely.

The COVID-19 NEP is scheduled to remain in effect for up to one year; however, OSHA has the ability to amend or cancel the program as pandemic conditions improve or become more controlled. Companies who operate in the industries listed below should be aware that the COVID-19 NEP could be the driver for increased inspections and enforcement by OSHA.

COVID-1 NEP – Industry Target Lists

Targeted Healthcare Industries (by NAICS Code):

  • 621111 Offices of Physicians (except Mental Health Specialists)

  • 621210 Offices of Dentists

  • 621610 Home Health Care Services

  • 621910 Ambulance Services

  • 622110 General Medical and Surgical Hospitals

  • 622210 Psychiatric and Substance Abuse Hospitals

  • 622310 Specialty (except Psychiatric and Substance Abuse) Hospitals

  • 623110 Nursing Care Facilities (Skilled Nursing Facilities)

  • 623210 Residential Intellectual and Developmental Disability Facilities

  • 623311 Continuing Care Retirement Communities

  • 623312 Assisted Living Facilities for the Elderly

Targeted Non-Healthcare Industries (by NAICS Code):

  • 311612 Meat Processed from Carcasses

  • 311611 Animal (except Poultry) Slaughtering

  • 311615 Poultry Processing

  • 445110 Supermarkets and Other Grocery (except Convenience) Stores

  • 452112 Discount Department Stores

  • 493110 General Warehousing and Storage

  • 561320 Temporary Help Services*

  • 722511 Full-Service Restaurants

  • 722513 Limited-Service Restaurants

  • 922140 Correctional Institutions

Supplemental List of Essential Critical Infrastructure Industries (by NAICS Category):

  • 11xxxx Agriculture, Forestry, Fishing and Hunting

  • 236XXX Construction of Buildings

  • 237XXX Heavy and Civil Engineering Construction

  • 238XXX Specialty Trade Contractors

  • 311xxx Food Manufacturing

  • 3121xx Beverage Manufacturing

  • 321xxx Wood Product Manufacturing

  • 322xxx Paper Manufacturing

  • 32412x Asphalt Paving, Roofing, and Saturated Materials Manufacturing

  • 32419x Other Petroleum and Coal Products Manufacturing

  • 325xxx Chemical Manufacturing Chemical

  • 326xxx Plastics and Rubber Product Manufacturing Transportations and Logistics

  • 327xxx Nonmetallic Mineral Product Manufacturing

  • 331xxx Primary Metal Manufacturing

  • 332xxx Fabricated Metal Product Manufacturing

  • 333xxx Industrial Machinery Manufacturing

  • 334xxx Computer and Electronic Product Manufacturing

  • 335xxx Electrical Equipment, Appliance, and Component Manufacturing

  • 336xxx Transportation Equipment Manufacturing

  • 33711x Wood Kitchen Cabinet and Countertop Manufacturing

  • 3399xx Other Miscellaneous Manufacturing

  • 44422x Nursery, Garden Center, and Farm Supply Stores

  • 445xxx Additional Food and Beverage Stores

  • 4523xx General Merchandise Stores, including Warehouse Clubs and Supercenters

  • 4851xx Urban Transit Systems

  • 4852xx Interurban and Rural Bus Transportation

  • 4854xx School and Employee Bus Transportation

  • 485991 Special Needs Transportation

  • 491xxx Postal Service

  • 54142x Industrial Design Services

  • 811219 Other Electronic and Precision Equipment Repair and Maintenance

  • 81131x Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance

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About this Author

Michael L. Miller Real Estate Lawyer Wiggin & Dana Law Firm

Mike is a Partner in Wiggin and Dana’s Real Estate, Environmental and Energy Department in the New Haven office. An experienced environmental, health and safety (EHS) attorney, Mike’s practice is largely comprised of three distinct categories of EHS legal representation: transactional support; compliance and risk counseling; and litigation.

Mike has over thirteen years of EHS compliance and risk management experience. His passion for client service, substantive and technical knowledge and geographic breadth of experience (having worked on matters in over 20 states) contribute to his...

Heather L. Sellew Litigation Attorney Wiggin and Dana Washington, DC

Heather is an Associate in Wiggin and Dana’s Litigation Department, where she focuses her practice in the International Trade Compliance and Sanctions Practice Group. Heather represents companies in corporate compliance and regulatory enforcement matters, with an emphasis on U.S. export controls – the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR) – and U.S. trade sanctions administered by the Office of Foreign Assets Control (OFAC).  Heather also has experience advising companies on Environmental, Health, and Safety legal requirements and...