On Safety: A look at OSHA’s National Emphasis Program on COVID-19

On March 12, OSHA launched a much-anticipated National Emphasis Program targeting enforcement of establishments in which workers are at risk of exposure to COVID-19. The NEP is part of the agency’s response to the Executive Order on Protecting Worker Health and Safety, signed by President Joe Biden on Jan. 21. 

In addition to focusing on establishments in which employees are at increased risk of COVID-19 exposure and those that have the greatest number of employees at risk, the NEP focuses on employer retaliation against workers who complain about unsafe conditions under the agency’s Whistleblower Protection Program. The directive applies OSHA-wide. However, adoption of the NEP by State Plans is encouraged but not required. State Plans must inform the agency about their intention to adopt the NEP within 60 days. Federal agencies subject to OSHA inspection with employees potentially exposed to COVID-19 are also included in the NEP. Establishments with fewer than 10 employees are included in the NEP, which remains in effect for 12 months unless extended or canceled by OSHA.

From an inspection perspective, the NEP will dedicate at least 5% of agency resources (about 1,600 inspections) to combating employee exposure to the virus. Follow-up inspections will be included in the NEP strategy. However, the criteria aren’t clearly spelled out. Establishment selection and targeting for inspection are based on industries listed in Appendices A and B of the directive. Under the NEP, OSHA will generate two master lists. 

Master List 1 will include companies with North American Industry Classification System codes included in Appendices A and B of the directive. Master List 2 will include establishments also having a NAICS code listed in Appendices A and B, but also having an elevated illness rate as indicated by OSHA Form 300A data. OSHA area offices can use either Master List 1 or 2, or a combination of both, to create their inspection targeting goals.

Appendix A of the NEP includes two tables. Table 1 is for targeted industries in health care and Table 2 is for targeted industries for non-health care. Tables 1 and 2 are derived from enforcement data, including complaints, fatality/catastrophes, referrals, inspections, COVID-19-related violations, hazard alert letters and areas in which the greatest number of employees are potentially exposed. Appendix B contains NAICS codes for industries in which employees have the highest frequency of close contact exposures to the public and/or co-workers. 

The NAICS list in Appendix B was generated by the Cybersecurity and Infrastructure Security Agency and the Centers for Disease Control and Prevention Advisory Committee on Immunization Practices. Inspection targeting lists under the NEP will be randomized. Under the NEP, OSHA area offices have the authority to add establishments to the list based on information from appropriate sources, including local establishment knowledge, commercial directories and referrals from the local health department.