OSHA has made it crystal clear that Covid 19 enforcement is now considered a top priority in this Administration and will be pursued vigorously from now on – and warehousing is directly in the crosshairs.
One of President Biden’s first actions was an order for OSHA to come up with new guidance and Emergency Temporary Standards regulations for employers. The new 6,000-word guidance document was issued earlier this year (AA, 2-15-21, P. 3).
On March 12, the agency also announced creation of a new National Emphasis Program (NEP) for Covid 19 that targets what it considers higher hazard industries for OSHA enforcement action.
The NEP was effective immediately and mandates that 5% of each OSHA region’s total inspections must be related to Covid 19. Across the agency, this amounts to about 1,600 total inspections.
At the same time, the agency updated and replaced its former Interim Enforcement Response Plan for Covid 19, designed to prioritize in-person worksite inspections by OSHA Compliance Safety and Health Officers (CSHO).
Although the NEP and Enforcement Plan apply only to workplaces in states subject to federal enforcement, OSHA “strongly encourages” adoption of the NEP by the 28 states and territories with state plans.
Targeted are sectors generating the highest number of complaints, such as healthcare, which includes hospitals, health care providers, assisted living facilities and home health care services.
General warehousing and storage is also targeted by OSHA, as well as temporary help agencies, discount department stores, full and limited service restaurants, supermarkets and grocery stores (excluding convenience stores), and poultry and meat slaughtering and processing plants.
Secondary targets encompass industries where workers come into routine contact with large numbers of co-workers and the general public. These includes manufacturing (such as food and beverage manufacturing), construction, commercial and industrial equipment maintenance, and transportation services.
In addition, the Enforcement Plan directs Area Directors and CSHOs to “prioritize Covid 19-related inspections involving deaths or multiple hospitalizations due to occupational exposures.”
If your company falls under any of these criteria, attorney Gabrielle Sigel of the Jenner & Block law firm advises that you review and update your Covid 19 safety documents, programs and procedures,
Make sure to take the time to review OSHA’s latest guidance for employers, Mitigating and Preventing the Spread of Covid 19 in the Workplace.
In the absence of specific regulations, OSHA enforcement officers can cite employers for violations under the what is called the General Duty Clause, which requires employers to maintain a safe and healthy workplace regardless of whether specific rules are in place.
Sigel says violations can arise from an employer failing to keep the workplace free of a hazard to which employees were exposed, failing to recognize a hazard that caused or was likely to cause death or serious physical harm, and lack of a feasible method fort correcting the hazard. She says Centers for Disease Control and Prevention (CDC) guidelines will be used to show a recognized hazard or feasible means to abate the hazard existed.
Make no mistake about it, Sigel warns, “OSHA has proclaimed that it intends to take aggressive enforcement measures with respect to a broad range of businesses that have been operating in their usual workplaces during the pandemic. Employers in these businesses should prepare accordingly.”
