By Brent I. ClarkJames L. CurtisAdam R. YoungA. Scott HeckerPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: On March 12, 2021, OSHA published its COVID-19 National Emphasis Program – Coronavirus Disease 2019 (COVID-19), DIR 2021-01(CPL-03) (3-12-21).  The Directive lays-out OSHA’s policies and procedures implementing a National Emphasis Program (NEP) for ensuring that employees in perceived “high-hazard industries” or work tasks are protected from the hazard of contracting COVID-19.

Days before President Biden’s deadline for OSHA to issue a COVID-19 emergency temporary standard (“ETS”), the Agency instead announced an NEP allegedly designed to protect employees from the spread of COVID-19.

The NEP “augments OSHA’s efforts addressing unprogrammed COVID-19-related activities, e.g., complaints, referrals, and severe incident reports, by adding a component to target specific high-hazard industries or activities where this hazard is prevalent.” The NEP purportedly targets establishments that have workers with increased potential exposure to contracting COVID-19 and that put the largest number of workers at serious risk. But with vaccination numbers increasing, one might question the targeted industries in OSHA’s NEP.

For example, with many frontline workers in the healthcare industry already vaccinated and therefore at lower risk of contracting COVID-19, how does increasing inspections in this arena keep workers safe or reduce transmission of the virus?  OSHA does not appear to have incorporated the efficacy of  vaccinations into its analysis of worker safety and health, especially as new data show the efficacy of the vaccines on asymptomatic COVID-19 and transmission.

As part of the NEP, OSHA stated it will emphasize anti-retaliation by distributing anti-retaliation information during inspections and taking advantage of outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program. The Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health, Jim Frederick, explained this dual purpose, stating that 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.”

In a related action, OSHA updated its Interim Enforcement Response Plan to prioritize the use of on-site workplace inspections where practical, or a combination of on-site and remote methods. OSHA will only use remote-only inspections if the agency determines that on-site inspections cannot be performed safely.

While we all wait to see whether OSHA will issue an ETS, employers in target industries should be acutely aware that OSHA plans to use its current tools to address perceived COVID-related violations. To this point, OSHA has cited employers primarily under its respiratory, reporting/recordkeeping, and PPE standards. While President Trump’s OSHA referenced the OSH Act’s “General Duty Clause” as another enforcement avenue, OSHA’s COVID-19 citation tracker suggests that there have been few citations issued pursuant to that provision. It is possible that the Biden Administration could turn to the General Duty Clause more often under its NEP.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.