Updates on OSHA’s COVID-Related Standard and NEP
March 15 was the deadline outlined in Executive Order 13999 for OSHA to issue an Emergency Temporary Standard (ETS) for COVID-19. Construction Industry Safety Coalition (CISC) informed the National Framers Council (NFC) 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. The CISC steering committee is monitoring the OMB/OIRA Regulatory Dashboard for any regulatory action and we hope the CISC will be able to meet with the OMB/OIRA staff during the regulatory review process of any OSHA ETS to discuss the potential economic impact of such a rule on the construction industry, particularly small businesses. Finally, once the ETS is issued, the CISC plans on releasing a press statement, as well as providing the CISC members information on what it in the standard and how it impacts the construction industry.
EO 13999 also required OSHA 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 12, OSHA issued its National Emphasis Program (NEP) – Coronavirus Disease 2019 (COVID-19). This NEP 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. The construction industry not being listed as a primary target for OSHA enforcement efforts would appear to be somewhat good news for construction.
Finally, it’s important to note 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.