OSHA Issues Updated Guidance on COVID-19 Enforcement

Key Takeaways:

• On July 7, 2021, OSHA issued revisions to its National Emphasis Program for COVID-19, DIR 2021-03 (CPL 03) (“Revised COVID-19 NEP”), and released an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) (“July 2021 IERP”).  These updates followed the issuance of OSHA’s June 28, 2021 Directive on Inspection Procedures for the COVID-19 Emergency Temporary Standard, DIR 2021-02 (CPL 02) (“COVID-19 ETS Inspection Procedures”).

• Under OSHA’s updated guidance, it will continue to target high hazard industries for programmed inspections and prioritize unprogrammed COVID-19-related inspections in circumstances involving deaths or multiple hospitalizations due to occupational exposures to COVID-19.

• In healthcare settings subject to the COVID-19 Emergency Temporary Standard (“COVID-19 ETS”), OSHA inspections will comprehensively address the COVID-19 ETS requirements, including the requirement to have a COVID-19 plan.

• In non-healthcare settings, OSHA will focus on the protections for employees that are unvaccinated or not fully vaccinated.

• Because supply shortages and related constraints are no longer widespread, OSHA has rescinded temporary enforcement discretion memoranda that were previously issued during the pandemic.  

• Employers should carefully review the updated guidance and be prepared for on-site inspections related to COVID-19.

Revised COVID-19 National Emphasis Program

OSHA first issued a National Emphasis Program (“NEP”) for COVID-19 on March 12, 2021.  The NEP was issued in response to President Biden’s January 21, 2021 Executive Order on Protecting Worker Health and Safety, which directed OSHA to launch a national program to focus OSHA enforcement efforts related to COVID-19 violations that put the largest number of workers at serious risk, and on employers that engage in retaliation against employees who complain about unsafe or unhealthful conditions or exercise other rights under the Occupational Safety and Health Act (the “Act”).

On July 7, 2021, OSHA issued a revised NEP with the following key changes:

• OSHA removed several industries from the list of industries that are targeted under the NEP.  While OSHA will still target the industries that are listed in Appendix A to the NEP (which include various health care industries, meat and poultry processing, certain retail settings, restaurants, warehousing and storage, postal service, and correctional institutions), OSHA has removed from the revised NEP those secondary target industries within the former Appendix B, which were from other critical infrastructure sectors that, at the height of the pandemic, were considered to have elevated risks of exposure.

• The Revised COVID-19 NEP now incorporates the COVID-19 ETS, which was published and became effective on June 21, 2021.

• The Revised NEP now directs inspectors to follow the COVID-19 ETS Inspection Procedures when conducting inspections in healthcare settings and the July 2021 IERP when conducting inspections in non-healthcare settings.    

Consistent with the original NEP, the Revised COVID-19 NEP emphasizes that OSHA should also focus enforcement efforts on employers that engage in retaliation against employees who complain about unsafe or unhealthful conditions or exercise other rights under the Act.  The Revised NEP reminds inspectors that workers who request inspections, complain of COVID-19 exposures in the workplace, or report injuries, illnesses, or retaliation, may be protected under whistleblower protection laws. It directs inspectors to inform those workers of whistleblower rights and resources, including the government site, https://www.whistleblowers.gov/.  In addition, where a worker is alleging some form of retaliation, that allegation should be referred to the Regional Whistleblower Protection Program.

States with state plans may either adopt identical, or if different then at least as effective, enforcement policies as those contained in the Revised COVID-19 NEP.  This Revised COVID-19 NEP is effective for no more than 12 months, or until June 28, 2022, unless it is canceled or superseded before then. 

COVID-19 ETS Inspection Procedures

The COVID-19 ETS Inspection Procedures describe the inspection and enforcement procedures that OSHA will follow when conducting inspections in workplaces that are subject to the COVID-19 ETS.  As discussed in our prior alert, the COVID-19 ETS applies to all settings where any employer provides healthcare services or healthcare support services, with some exceptions.  The COVID-19 ETS requires covered employers to develop and implement a COVID-19 plan to identify and control COVID-19 hazards in their workplaces and to address and implement various requirements to reduce transmission of COVID-19 in their workplaces.

The COVID-19 ETS Inspection Procedures provide detailed guidance on how inspectors will conduct inspections and determine whether there are violations of the COVID-19 ETS.  The key areas that inspectors will evaluate during an inspection include the following:

• Applicability of the COVID-19 ETS;
• The employer’s COVID-19 plan and related documents;
• Patient/non-employee screening and management;
• Standard and transmission-based precautions;
• Aerosol-generating procedures;
• Physical distancing;
• Physical barriers;
• Cleaning and disinfecting;
• Ventilation;
• Employee health screening and medical management;
• Vaccination;
• Training;
• Anti-retaliation;
• Ability of employer to meet all elements of the COVID-19 ETS without shifting the cost to employees;
• Recordkeeping;
• Reporting to OSHA; and
• Mini-respiratory protection program requirements.

Under the COVID-19 ETS Inspection Procedures, inspectors will evaluate several aspects of an employer’s COVID-19 plan.  In particular, inspectors will inquire about and evaluate whether the employer has designated one or more COVID-19 safety coordinators to implement, monitor, and report on the COVID-19 plan; if there was adequate employee input; the means through which the employer ensures the continued effectiveness of its plan; whether there has been a workplace hazard assessment, the policies and procedures to minimize risk to employees; and whether there are policies and procedures to effectively communicate and coordinate with other on-site employers or contractors.  Employers should also expect OSHA to focus on whether their COVID-19 plan is either site-specific or task-specific.

As with the Revised COVID-19 NEP, states with state plans may either adopt identical, or if different then at least as effective, enforcement policies as those contained in the COVID-19 ETS Inspection Procedures.

July 2021 Interim Enforcement Response Plan

The July 2021 IERP provides instructions and guidance to Area Offices and inspectors for handling COVID-19 related complaints, referrals, and severe illness reports and conducting inspections in non-healthcare workplaces that are not subject to the COVID-19 ETS Inspection Procedures.  The July 2021 IERP rescinds and replaces OSHA’s March 12, 2021 Updated Interim Enforcement Response Plan.  Key updates in the July 2021 IERP include:

• A focus on protections for workers who are unvaccinated or not fully vaccinated.  OSHA recommends implementing multiple layers of controls to limit potential exposures to workers who are not fully vaccinated or who are unvaccinated.  For example, employers should implement, or continue to implement, physical distancing, maintain ventilation systems, and ensure that workers use face coverings or PPE when appropriate.

• Reduced enforcement discretion for noncompliance with Respiratory Protection standard.  Earlier in the COVID-19 pandemic when employers faced shortages of respirator supplies and services, OSHA issued temporary enforcement discretion policies for the Respiratory Protection standard.  The July 2021 IERP acknowledges that these circumstances have changed and indicates that, where respirator supplies and services are readily available, OSHA will cease to exercise enforcement discretion for temporary noncompliance with the Respiratory Protection standard.  Where healthcare-associated industries still face a respirator equipment shortage, OSHA will address non-compliance on a case-by-case basis.

• Rescinding of previous temporary enforcement discretion memoranda.  Due to the changing circumstances, OSHA will no longer exercise enforcement discretion of requirements in other health standards and is rescinding its previous temporary enforcement discretion memoranda.

• Updated instructions and guidance for OSHA area offices and inspectors for handling COVID-19-related complaints, referrals, and severe illness reports.  In light of the recognition that workers who are unvaccinated or not fully vaccinated are at a higher risk of infection, the instructions and guidance for inspectors and area offices now instruct inspectors to verify the existence and effectiveness of procedures for determining vaccination status and to determine whether the employer has implemented measures for unvaccinated or not fully vaccinated workers.  When citing employers under the General Duty Clause, inspectors and Area Offices are expected to provide findings that workers who are unvaccinated or not fully vaccinated were exposed to a recognized COVID-19-related hazard.

• Ensuring workers are protected from retaliation.  Like the Revised COVID-19 NEP, the July 2021 IERP reminds inspectors that workers fearing consequences for requesting inspections, complaining of exposure to COVID-19, or reporting illnesses may be covered under one or more whistleblower statutes and directs inspectors to inform workers of their protections from retaliation.  If the worker alleges retaliation, the Area Officer must submit a referral to the Regional Whistleblower Protection Program.

• References to the Revised NEP for COVID-19.  The July 2021 IERP reiterates that OSHA will continue using the Revised COVID-19 NEP to prioritize COVID-19-related inspections involving fatalities or multiple hospitalizations, to conduct follow-up inspections, and to target high hazard industries.

This article was prepared with the assistance of Elizabeth Johnson.

Beveridge & Diamond’s Occupational Safety & Health practice group works alongside clients’ legal, EHS, and technical teams to help resolve critical enforcement, compliance, and regulatory issues relating to their facilities and operations. We maintain an Occupational Safety & Health Resource Center designed to help companies understand the regulatory framework for worker health and safety protection and stay educated about the federal and state developments affecting their workplaces. For more information, please contact the authors.