OSHA Removes Construction from COVID Emphasis Program

The Occupational Safety and Health Administration (OSHA) recently made substantial changes to its National Emphasis Program (NEP) for COVID-19 that the agency kicked off earlier this year, including the removal of some industries from the list of targets for intensified inspection activities.

Of course, with such major changes comes a new name for the program, which from now on will no longer be called an NEP but instead is now designated as an updated Interim Enforcement Response Plan, or IERP.

Employers should keep in mind that both the original NEP and the new IERP apply only in those states subject to federal OSHA enforcement and do not apply in states with their own occupational safety and health agencies.

Last March, the agency announced creation of the NEP for COVID-19 enforcement action focusing on employers in higher hazard industries. The NEP mandates that 5% of each OSHA region’s total inspections must be related to COVID-19, resulting in a total of about 1,600 inspections.

NEPs are temporary programs that focus OSHA's resources on particular hazards and high-hazard industries. Other NEPs adopted since 2008 have dealt with combustible dust, hazardous machinery, hexavalent chromium, lead, primary metal industries, process safety management, shipbreaking, crystalline silica, and trenching and excavation.

Initially targeted was the healthcare industry, which includes hospitals, healthcare providers, assisted living facilities and home healthcare services. That was followed in May by a focus on restaurants, including both full-service and limited-service establishments.

Other industries included in the COVID-19 NEP at that time were general warehousing and storage, temporary help and staffing agencies, discount department stores, supermarkets and grocery stores (excluding convenience stores), and poultry and meat slaughtering and processing plants, some of which already had been inspected and drawn citations.

Among the changes included in the IERP issued on July 7, the revised directive shrinks the number of targeted industries whose workers are identified as being most at risk for COVID-19 exposure. Those who are covered by the program still includes healthcare and some non-healthcare industry segments considered higher risk, such as meat and poultry processing, and warehousing.

The revised NEP also removes an appendix to the agency’s March directive that contained a list of secondary target industries, which apparently will no longer be subject to the enforcement initiative.

These are: agriculture, forestry, fishing and hunting; construction of buildings; heavy and civil engineering construction; specialty trade contractors; food manufacturing; beverage manufacturing; wood product manufacturing; paper manufacturing; other petroleum and coal products manufacturing; chemical manufacturing; plastics and rubber product manufacturing; nonmetallic mineral product manufacturing; primary metal manufacturing; an d asphalt paving, roofing and saturated materials manufacturing.

Other updates in the IERP include:

• Enforcing protections for workers in non-healthcare industries who are unvaccinated or not fully vaccinated.
• Where respirator supplies and services are readily available, OSHA will stop exercising enforcement discretion for temporary noncompliance with the Respiratory Protection standard based on employers’ claims of supply shortages due to the COVID-19 pandemic.
• OSHA will no longer exercise enforcement discretion for the same requirements in other health standards, where full compliance may have been difficult for some non-healthcare employers due to the COVID-19 pandemic.
• Updated instructions and guidance for OSHA area offices and compliance safety and health officers (CSHOs) for handling COVID-19-related complaints, referrals and severe illness reports.
• Ensuring workers are protected from retaliation.
• References to the revised NEP for COVID-19.

Attorneys for the Seyfarth Shaw legal firm took special notice of the changes in inspection procedures. For inspections in the healthcare industry, the revised plan refers CSHOs to a new directive on Inspection Procedures for the COVID-19 Emergency Temporary Standard (ETS), that was issued on June 28. However, inspections in non-healthcare establishments will follow procedures outlined in the IERP.