Employers across the country and those in charge of workplace safety have been keeping an eye on the U.S. Occupational Safety and Health Administration, which in accordance with directives from the Biden administration has made guidance and changes to better protect workers from COVID-19.
On 12 March, the Agency launched its National Emphasis Program to focus its enforcement efforts on industries with the highest number of workers at serious risk of developing coronavirus. The program will be in effect for up to a year, although OSHA said it has the flexibility to change or cancel it when the pandemic subsides.
The regulatory announcement came as employers and watchdogs waited for an urgent COVID-1
While many believe a standard is still in place, experts say the new application program represents a resource management strategy that will draw more attention to industries where workers are more exposed to COVID-19, as they interact more with the public or for that social distancing is more difficult, as in some manufacturing settings.
Without a specific standard that dictates what employers must do to prevent COVID-19, experts say the program can result in citations motivated by violations of regulations such as the general customs clause, a collection rule that requires employers to maintain a safe workplace without risks to employees. Standards that prescribe respiratory protection and training, personal protective equipment and record keeping can also be mentioned.
The Agency also leans on new guidelines, issued on January 29, in accordance with the President's executive order, which reiterated the need for such mitigation and workplace distancing in the workplace to prevent COVID-19 outbreaks. Meanwhile, the NEP says that "in the event that OSHA issues a temporary emergency standard, these provisions will take precedence over quotations in the general customs clause."
Even without a COVID-19 standard, "the agency has more than enough oversight authority to cite a large number of employers for non-compliance with the rules and regulations contained in the books," said Andrew Brought, Kansas City, Missouri. attorney with Spencer Fane LLP.
The NEP program "is less a change of policy and more a change of resources," said Courtney Malveaux, Richmond, Virginia-based principal and co-chair of the Workplace Safety and Health Working Group. on Jackson Lewis PC “This hunts where the ducks are. … The agency has identified caregivers and employers at higher risk when it comes to COVID.
The program will target 21 industry codes in the North American Industrial Classification System, with 11 codes relating to care facilities, such as nursing homes, hospitals and dental offices. The remaining ten codes refer to other high-risk workplaces, including restaurants, supermarkets, prisons and meat processing plants.
The goals mentioned in the NEP have "proven to be higher risk" over the past year, according to John Ho, New York-based chair of OSHA practice for Cozen O & # 39; Connor P.C. "It makes sense to me," he said.
Employers can also expect more on-site inspections, which were curbed during the pandemic due to safety concerns. According to OSHA documents, the NEP program confirms "OSHA's compliance with long-term inspection policies based primarily on the presence (in person) of most inspections."
With an increase in federal funding – the latest COVID-19 stimulus bill earmarked $ 75 million in pandemic-related funding for the agency – the new program could result in up to 2,000 more inspections per year for targeted employers, says Eric Conn, Washington -based founder of Conn Maciel Carey LLP. "They're not just talking about enforcement," he said. "They put a lot of money and effort behind it."
The program's launch follows a February 25 report from the U.S. Department of Labor Office of the Inspector General that found inefficiency in OSHA's handling of pandemic inspections.
Specifically, investigators found that OSHA received 15% more occupational safety complaints between February 1, 2020 and October 2, 2020, but it performed 50% fewer inspections than during a similar period in 2019.
"Due to the increase in complaints, decrease in inspections and most inspections that are not carried out on site, there is an increased risk that OSHA has not provided the level of protection that workers need in different workplaces, the report says, adding, "we are concerned that because most OSHA inspections were done remotely During the pandemic, the dangers can go unidentified and undiminished any longer, with employees being more exposed to hazardous risk exposure while working. "
OSHA stated that the new increase in inspections will include" certain follow-up inspections of workplaces inspected in 2020. "