The Occupational Safety and Health Administration did not issue an Emergency Temporary Standard on COVID-19 yesterday as had been widely anticipated. Instead, on Friday, OSHA issued both a Compliance Directive establishing a National Emphasis Program for COVID-19 and an Updated Interim Enforcement Plan. The Compliance Directive states that its intent is “to ensure that employees in high-hazard industries or work tasks are protected from the hazard of contracting SARS-CoV-2 . . . .” More specifically, OSHA explains that it is targeting certain industries “where employees have a high frequency of close contact exposures and where this hazard is prevalent.” The Agency’s goal is to conduct COVID-19 inspections of “at least 5 percent” of a Region’s total assigned inspection goal. These targeted inspections will not replace inspections that are triggered by complaints or referrals, but are intended instead to augment those unprogrammed inspections.
The targeted inspections will be based on two Master Lists created by the Agency. Master List 1 is comprised of the North American Industry Classification System codes listed in Appendices A and B of the Directive. These include the following Targeted Industries, among others:
Appendix A (Healthcare and General Industries)
622110 General Medical and Surgical Hospitals
623110 Nursing Care Facilities
623312 Assisted Living Facilities for the Elderly
311612 Meat Processed from Carcasses
311611 Poultry Processing
445110 Supermarkets and Other Grocery Stores
493110 General Warehousing and Storage
Appendix B (Non-Healthcare Essential Workers)
311 Food Manufacturing
3121 Beverage Manufacturing
322 Paper Manufacturing
331 Primary Metal Manufacturing
332 Fabricated Metal Product Manufacturing
336 Transportation Equipment Manufacturing
Master List 2 is a list of all establishments listed in Appendix A and B and having an elevated illness rate based on the 2020 OSHA 300A data. OSHA Area Offices are directed to use “either list or a combination of the two lists” to meet their targeted inspection goals.
The Compliance Directive instructs that targeted inspections may begin at least two weeks after the effective date of the Directive, which was March 12. These inspections are to be conducted consistent with the “Updated Interim Enforcement Response Plan for COVID-19,” which was also issued on March 12. Under this Plan, inspections are to be conducted on site, “where practical,” but “phone and video conferencing in lieu of face-to-face employee interviews” will also continue to be used.
OSHA Compliance Officers are directed to focus primarily on the following:
Employer’s written COVID-19 Prevention Plan.
The assessment of COVID-19 exposures.
The implementation of control measures, including physical distancing or barriers and the use of face coverings.
Medical records related to exposure incidents and injury/illness recordkeeping.
Review of Respiratory Protection Program where respirators are required.
Review of training records.
Review documentation of efforts to secure appropriate personal protective equipment.
Additional steps are included in this Guidance for inspections at health care facilities.
OSHA also advises its Compliance Officers that all COVID-19 inspections are to be conducted “in a manner to achieve expeditious issuance of . . . citations and abatements.”
As of now, OSHA has not announced its plans with respect to the issuance of the Emergency Temporary Standard that we were expecting yesterday. We anticipate the Agency will still be issuing an ETS in the next few weeks.
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