OSHA Announces New National Emphasis Program (NEP) to Protect High-Risk Workers From COVID-19

Michael P. Cianfichi, Kevin M. Levy

In a long-anticipated move, the Occupational Health and Safety Administration (OSHA) launched a national emphasis program (NEP) on March 12, 2021, which is aimed at protecting workers in high-hazard industries from COVID-19. Following up on non-binding guidance first published on January 29 of this year, the NEP will focus on enforcement efforts at companies that have the highest concentration of workers who are at risk of contracting COVID-19 because of the nature of their job. The NEP also emphasizes that workers should be free from retaliation for exercising their right to complain about unsafe or unhealthy working conditions. OSHA is the federal agency tasked with ensuring safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance.

On January 12, 2021, President Biden issued an Executive Order directing the Secretary of Labor and OSHA to review enforcement efforts and launch a program that would identify changes that could be made to better protect workers from COVID-19. Among other things, it set forth the new administration's policy on this topic: "healthcare workers and other essential workers, many of whom are people of color and immigrants, have put their lives on the line during the coronavirus disease 2019 (COVID-19) pandemic. It is the policy of my Administration to protect the health and safety of workers from COVID-19." Recognizing that most of the existing COVID-19 regulations have been issued at the state level, the NEP emphasizes that the federal government's efforts are concentrated on the workplaces which are related to higher-than-average COVID-19 transmissions. The full directive can be found here.

The recently-launched NEP will remain in effect for one year, and OSHA has the option to amend or cancel it depending on pandemic conditions. The NEP's goal is stated to "significantly reduce or eliminate worker exposures" by "targeting industries and worksites where employees may have a high frequency of close contact exposures." To achieve this goal, the NEP will use a combination of inspection targeting, outreach to employers, and compliance assistance. Regarding inspections, the NEP will continue unannounced inspections at worksites where workers have a high frequency of close contact exposures, with a focus on healthcare facilities based on current data. In addition to healthcare facilities, the NEP will also target industries such as food processing facilities, supermarkets, warehouses, correctional institutions, restaurants, and department stores. The enhanced inspection efforts will include following up on some worksites already inspected in 2020.

On retaliation protections, the NEP also directs compliance safety and health officers to conduct investigations and inform workers of their right to file a whistleblower complaint if they experience retaliation for providing assistance to OSHA during an inspection, for filing an OSHA complaint, or for reporting work-related COVID-19 illnesses. All retaliation complaints are then referred to OSHA's Regional Whistleblower Protection Program.

Businesses that need advice relating to OSHA investigations and compliance should contact an attorney in Saul Ewing's labor and employment practice.

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