Burr & Forman

03.15.2021   |   Articles / Publications

OSHA Launches National Emphasis Program to Protect High-Risk Workers from COVID-19 or Retaliation from COVID-19 Complaints

On March 12, 2021, the Occupational Safety and Health Administration (“OSHA”) launched a National Emphasis Program (“NEP”) to focus its COVID-19 enforcement efforts.  The NEP will remain in effect for up to one year from its issuance date, although OSHA has the discretion to amend or cancel the program sooner as more workers are vaccinated and the pandemic begins to subside.  This program is a direct response to a January 2021 executive order from President Biden directing the Department of Labor to issue revised guidance for employers.

As part of the NEP, OSHA will utilize a focused strategy for inspections to ensure that COVID-19 protections are being utilized in the workplace.  The NEP also includes follow-up inspections of worksites that were previously inspected as the result of a COVID-19-related fatality or of workplaces that received a COVID-19-related citation.  The NEP provides a full list of targeted industries in Appendices A and B but anticipates that the majority of the inspections will continue to occur in general industry, particularly in healthcare, meat processing facilities, grocery stores, restaurants, and general warehousing operations.  The goal of the NEP is for at least 5% of the inspections in each Region to be COVID-19 inspections.  Further, these inspections may be initiated as soon as two weeks from the NEP’s issuance date. Inspections related to COVID-19 fatalities are first priority under the NEP, followed by inspections of alleged employee exposure to COVID-19.  These inspections will be conducted on-site and in-person unless OSHA determines that it cannot do so safely.

Further, the NEP focuses additional enforcement efforts on employers that engage in retaliation against workers who complain about “unsafe or unhealthful conditions or exercise other rights.”  Any worker who requests an inspection, complains about COVID-19 exposure, or reports injuries, illnesses, or retaliation may be protected under one or more whistleblower protection statutes.  If a worker alleges retaliation, the OSHA Area Office is required to submit a referral to the Regional Whistleblower Protection Program.

There are a few practical takeaways for employers preparing for OSHA’s heightened enforcement efforts under the NEP:

  • Employers, especially those listed in Appendix A and Appendix B to the NEP, should review their policies and practices to make sure that they have developed, implemented, and are maintaining a plan to mitigate the risk of exposure to COVID-19;
  • Employers who were previously inspected for COVID-19 concerns should prepare for the potential for a follow-up inspection and should ensure that any previously noted violations have been cured; and
  • Employers should be careful to ensure that they are not retaliating against employees who complain about COVID-19 safety concerns in any way.

For questions about OSHA’s NEP, you can contact Ron Flowers, Scott Williams, Cayman Caven, or the Burr & Forman attorney with whom you regularly work.

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