A new OSHA NEP helps employers know what to look out for.

OSHA and its new leadership have been busy establishing expectations for employers to mitigate and prevent the spread of COVID-19. They have also been ramping up enforcement efforts, specifically focusing on COVID-19.

On March 12, 2021, OSHA released a Directive. Directives are instructive to OSHA staff regarding how to conduct their work. At the same time, an Enforcement Memorandum was updated and released instructing OSHA staff how to conduct inspections and issue citations related to the new Directive. While both documents are for internal OSHA use, they are public records. If you read them, you’ll have a good idea how to prepare and what to expect should you be inspected. The documents are also instructive to Approved-State OSHA plans and set clear expectations for states who operate their own OSHA programs.

In a previous post, I identified 20 action items OSHA is expecting of employers. This new directive announces a new National Emphasis Program (NEP) titled:

National Emphasis Program-Coronavirus Disease 2019 (COVID-19)-CPL-03

When OSHA wants to target a particular hazard or industry associated with high rates of injury, illness, or death, they can issue a directive called a CPL and establish a National Emphasis Program (NEP) to target a hazard or industry. OSHA currently has 10 NEPs: Combustible Dust, Hazardous Machinery, Hexavalent Chromium, Lead, Primary Metal Industries, Process Safety Management (PSM), Shipbreaking, Silica, Crystalline, Trenching and Excavation, and Coronavirus (COVID-19).

For example, the Trenching and Excavation NEP has been in place for many years. When I was an OSHA investigator, it was my responsibility under that NEP to stop and conduct an inspection whenever I saw a trench or excavation because of the high fatality rates associated with that work.

This NEP gives OSHA an additional lever to pull establishing probable cause for inspection in addition to their priority to investigate complaints, referrals, imminent danger situations, fatalites, and catastrophes. The goal of the Coronavirus (COVID-19) NEP is “to significantly reduce or eliminate worker exposures to SARSCoV-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. This goal will be accomplished by a combination of inspection targeting, outreach to employers, and compliance assistance.”

OSHA also published this slide with pertinent dates around this NEP:

The NEP document is nearly 20 pages with six appendices, all which serve as a guide for OSHA investigators to do their work. If you are inspected as a result of this NEP, but have read the directives, you’ll know exactly what the investigator will be asking about and looking for.

Here are three key elements of the NEP to pay specific attention to:

1. Are you a target for inspection? Industries targeted for inspection, listed by NAICS Code, are found in Appendix A & B of the NEP and divided by:
   1. Industries in healthcare (11 listed)
   2. Industries for non-healthcare (10 listed)
   3. Supplemental Industries for non-healthcare in Essential Critical Infrastructure (32 listed)
2. The definition of ‘close contact’ for risk exposure -- within six feet of another person for a total of 15 minutes or more over a 24-hour period -- and what this means as it relates to quarantining and minimizing virus transmission (page 4 of the NEP)
3. Reference OSHA’s document, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. The document’s elements are mentioned throughout the NEP, meaning following the guidance will serve you and your employees well.

Due to the new NEP, OSHA needed to update this memorandum:

Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)

Like the NEP, this is another internal document (25 pages) for OSHA Investigators to follow. The NEP establishes who OSHA inspects and why, while the Enforcement Response Plan details what is expected during an inspection. These expectations include how investigators protect themselves from the virus, explain the parts of an inspection, what inspectors are to review and examine, and how to issue citations using existing OSHA laws and the General Duty Clause until an emergency temporary standard (ETA) is issued. Understanding these expectations helps employers prepare for an inspection. Like the NEP Directive, elements of the document, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace are found throughout this memorandum, again affirming it is best to ensure you are complying with the elements in the guidance document.

I will continue paying close attention to OSHA, especially for the announcement of an emergency temporary standard set to be released sometime March 2021.

Meanwhile, the team at HSI is developing resources and tools to help you comply with OSHA’s Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.

For more information about the emergency temporary standard (ETS) in response to the coronavirus pandemic, listen in on the most recent podcast, “OSHA is Considering an Emergency Temporary Standard” with guest Mark Catlin where we discuss all of the new OSHA documents and the history of ETS in the agency. Follow the Accidental Safety Pro podcast where I regularly cover all of OSHA’s current initiatives with fellow health and safety professionals.

Jill James is Chief Safety Officer at HSI. Her 27-year health and safety career includes 12 years as Senior Safety Investigator with OSHA and several years in healthcare, education, biotech, life sciences, and the poultry industry. At HSI, Jill focuses on thought leadership, brand awareness, product, external relationships, internal training, and tracking/deciphering regulatory changes and trends. Jill is also host of the Accidental Safety Pro podcast and content creator of the Supervisor Safety Tip video series.