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OSHA COVID-19 National Emphasis Program Signals Increased Inspections and Enforcement

Article By:
Michael L. Miller
Heather L. Sellew

As published on March 12, 2021, OSHA is approaching COVID-19 enforcement by way of a COVID-19 National Emphasis Program (“COVID-19 NEP”).  The COVID-19 NEP went into effect immediately upon publication.

From our perspective, the COVID-19 NEP is consistent with President Biden’s January 2021 Executive Order (“EO”) calling for OSHA to consider a federal COVID-19 Emergency Temporary Standard and national emphasis program.  The EO required OSHA to issue any COVID-19 Emergency Temporary Standard on or before March 15, 2021; the Agency has not issued such a standard as of this writing.

The goal of OSHA’s new COVID-19 NEP, is “to significantly reduce or eliminate worker exposures to SARS-CoV-2 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.”  The NEP includes “an added focus to ensure that workers are protected from retaliation,” which is to be accomplished by, among other things, distributing anti-retaliation information during inspections and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.

Pursuant to the COVID-19 NEP, some worksites that were previously inspected by OSHA in 2020 will be the subject of follow-up inspections. OSHA will concentrate on establishments in industries identified on OSHA’s targeting lists: (1) high risk healthcare establishments, (2) high risk non-healthcare establishments, and (3) supplemental industries for non-healthcare in essential critical infrastructure. A list of these industries is provided at the bottom of this alert.

OSHA also recently announced that it has updated its Interim Enforcement Response Plan, which describes how OSHA’s field staff should conduct COVID-related inspections.  The updated response plan provides more detail on inspection protocols and highlights the types of violations that OSHA’s field staff will be looking for during inspections.  Notably, the new Interim Enforcement Response Plan directs Area Offices to prioritize the use of on-site workplace inspections. Previously, much of OSHA’s inspection and investigation activity had been remote.  OSHA is now taking the position that it will use remote inspections only if it determines that on-site inspections cannot be performed safely.

The COVID-19 NEP is scheduled to remain in effect for up to one year; however, OSHA has the ability to amend or cancel the program as pandemic conditions improve or become more controlled. Companies who operate in the industries listed below should be aware that the COVID-19 NEP could be the driver for increased inspections and enforcement by OSHA.

COVID-1 NEP – Industry Target Lists

Targeted Healthcare Industries (by NAICS Code):

Targeted Non-Healthcare Industries (by NAICS Code):

Supplemental List of Essential Critical Infrastructure Industries (by NAICS Category):


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National Law Review, Volume XI, Number 81

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