It's Time to Update Your COVID-19 Prevention Plan Again

A new Fed-OSHA COVID-19 emergency temporary standard is coming soon.

• By Kristina Carlton
• May 06, 2021

President Biden stated that it is his administration’s priority to protect the health and safety of workers from COVID-19. Shortly after taking office, he requested through an executive order that OSHA: 1) Issue revised guidance to employers on workplace safety for COVID-19 2) consider issuing emergency standards and 3) improve enforcement and outreach efforts to protect workers. On March 12, 2021, OSHA issued a national emphasis program (NEP) directive (NEP DIR 2021-01 (CPL-03), providing guidance for targeted inspections, outreach and compliance assistance. Now, with just over 100 days into the new administration, an emergency standard and more rigorous enforcement are expected soon.

Up until this point, throughout the country, many local and state governments have implemented their own COVID-19 requirements in the absence of a federal standard. This absence created a challenging regulatory patchwork for employers with multi-state or national operations to follow. Even with the proliferation of vaccines, some states continue to see surges in COVID-19 infections and hospitalizations.

At the time of this writing, an OSHA emergency temporary standard (ETS) establishing minimum standards for COVID-19 prevention had not yet been formally created. However, on Monday, April 26, 2021, the agency sent its highly anticipated draft to the Office of Management and Budget for review. To get a sense of what the OSHA ETS may look like, consider reviewing Virginia and California’s OSHA COVID-19 Prevention Standard for influence. Don’t wait for the OSHA ETS to update your COVID-19 program and be sure to maintain your mask mandates; your company may be at risk of inspection and enforcement action under the current NEP.

This NEP aims to significantly reduce or eliminate worker exposures to COVID-19 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 inspections, outreach to employers and compliance assistance. The NEP framework will likely continue even after the passage of the OSHA ETS.

What does this mean for my business?

In one word, compliance. This new NEP recommends that worksites’ safety and health practices are consistent with the most current CDC recommendations and comply with existing applicable OSHA standards until the new OSHA COVID-19 ETS is disseminated. At a minimum, each worksite should have a documented hazard assessment of COVID-19 risks with preventative measures identified as part of a COVID-19 Prevention Program and evidence that it is being followed. OSHA will be looking to ensure that employers are following OSHA’s guidance for protecting workers, that employers are following the plan that they have created, are meeting obligations under the General Duty Claus [Section 5(a)(1) of the OSH Act] and are compliant with the following applicable standards:

• • 29 CFR Part 1904, Recording and Reporting Occupational Injuries and Illness
• • 29 CFR § 1910.132, General Requirements - Personal Protective Equipment 
• • 29 CFR § 1910.134, Respiratory Protection (especially voluntary use of filtering face piece respirators, OSHA must be provided a copy of Appendix D)
• • 29 CFR § 1910.141, Sanitation • 29 CFR § 1910.145, Specification for Accident Prevention Signs and Tags
• • 29 CFR § 1910.1020, Access to Employee Exposure and Medical Records
• • 29 CFR §1910.1030, Bloodborne Pathogens Standard

Inspections: Will OSHA conduct an on-site inspection?

OSHA is organized into regions, and in each region, the goal of this NEP is to continue performing a high percentage of COVID-19 inspections (at least 5 percent) of the region’s total assigned inspection goal (which is approximately 1,600 inspections OSHA-wide). Inspections will be conducted based on unprogrammed events and site-specific targeting. Unprogrammed events such as COVID-19 fatalities, increases in the number of cases and hospitalizations and complaints or referrals will be prioritized. Site-specific targeting inspections are based on industries that are essential, maintain critical business operations and are likely to have exposures to COVID-19.

OSHA anticipates that most inspections will continue to occur in general industry, particularly in healthcare. However, correctional facilities and workplaces in critical industries located in communities with increasing rates of COVID-19 transmission and where workers are in close proximity (<6 feet) to the public or coworkers, such as meatpacking plants, poultry processing facilities and grocery stores will also be a targeted. Allegations of potential worker exposures to COVID-19 (e.g., insufficient controls in place such as PPE), or involving workers suspected or confirmed positive for COVID-19, or with symptoms of exposure to the virus (e.g., fever, chills, shortness of breath or difficulty breathing), will be given priority for on-site inspections. Current OSHA enforcement and inspection data show higher than average COVID-19-related complaints, referrals and severe incident reports at healthcare worksites.

Enforcement: What happens after an inspection?

Organizations can expect to receive a letter from OSHA that their facilities were inspected for COVID-19 prevention. If hazards were found in violation of OSHA standards or CDC guidelines, then citations or a hazard alert letter (HAL) will be issued. Citations often involve fines and a formal written response from the organization to OSHA is required. In addition, a follow-up inspection by OSHA may be conducted to ensure compliance. It is important to note that establishments with fewer than 10 workers are included in this NEP. However, violations noted during an enforcement inspection of such an establishment are exempt from programmed safety inspections and will not be cited or referred for later inspection unless such violations create an imminent danger.

The science and our understanding of SARS-CoV-2, the coronavirus that causes COVID-19, is expanding almost daily, as is the guidance on risk and proper risk mitigation, particularly as vaccination percentages increase. Soon the OSHA ETS will be promulgated, and state OSHA programs may follow after that, so it’s critical that employers stay up to date on all current recommendations and regulations. This is a potentially daunting task that can be made easier by reaching out to other organizations to see what they are doing and by routinely visiting News and Updates for COVID-19 from OSHA, your state OSHA program websites and the CDC’s Workplace Guidance, as these pages are constantly updating with new information.