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OSHA’s COVID-19 Employer / Employee Enforcement Updates

Monday, March 15th was OSHA’s deadline to issue an Emergency Temporary Standard (ETS) for COVID-19.  We are hearing from multiple sources that OSHA is almost certain to issue an ETS, however there will likely be a delay in issuing the rule.  It is anticipated the standard would require employers to conduct an analysis of COVID-19 infection risk to workers and then develop and implement programs based on CDC guidance, such as face coverings, limited contact among workers, frequent cleaning and disinfecting routinely touched surfaces and tools, etc.

Additionally, OSHA is expected to launch a national program to focus its enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk.  On Friday, March 12th, OSHA issued its National Emphasis Program (NEP) – Coronavirus Disease 2019 (COVID-19), which targets establishments that have workers with increased potential exposure to COVID-19 hazards and is intended to enhance the agency’s previous coronavirus enforcement efforts.  The NEP outlines “primary target industries” for OSHA enforcement efforts including healthcare, food processing, prisons, retail, and restaurants.  Construction is listed in the “secondary target industries” (non-healthcare essential workers who are likely to have the highest frequency of close contact exposures to the public or to coworkers resulting from their on-site work-related duties) and the list was generated from the list of critical infrastructure industries identified by the Department of Homeland Security and CDC.

Also, OSHA updated its Interim Enforcement Response Plan for COVID-19, which provides new procedures and guidance to Area Offices and Compliance Safety and Health Officers (CSHOs) for handling COVID-19-related complaints, referrals, and severe illness reports. The enforcement plan prioritizes the use of on-site workplace inspections where practical, or a combination of on-site and remote methods. OSHA will only use remote-only inspections if the agency determines that on-site inspections cannot be performed safely.