On March 12, the Occupational Safety and Health Administration adopted a National Emphasis Program (NEP) on COVID-19¹, which became effective immediately and will remain in effect for 12 months unless action is taken to renew it. 

The NEP signals OSHA’s commitment to step up virus-related inspections, and it states that employers may be cited under the Occupational Health and Safety Act’s General Duty Clause. 

The NEP followed a Jan. 21 Executive Order issued by President Biden directing OSHA to issue a NEP for COVID-19, as well as to consider by March 15 whether it was necessary to establish an Emergency Temporary Standard for COVID-19. To date, OSHA has not issued an emergency standard, but it is possible that it still may do so. OSHA state plans were given 60 days from March 12 to notify federal OSHA of whether they will adopt the NEP or rely on existing policies and standards to regulate COVID-19 exposure in the workplace.

Why Construction Employers Should Care About the NEP

The NEP creates two “Master Lists” in Appendices “A” and “B” for programmed inspections in those industries where OSHA has identified a greater risk for COVID-19 transmission. 

Appendix B contains “Secondary Target Industries” that OSHA may select for programmed inspections, and also includes: “Construction of Buildings” (NAICS 236XXX); “Heavy and Civil Engineering Construction” (NAICS 237XXX); and “Specialty Trade Contractors” (NAICS 238XXX). 

Construction employers in those listed industries could be randomly selected in accordance with the terms of the NEP for a programmed inspection. However, construction employers must also be ready for the expansion, or attempted expansion, of a non-programmed inspection based on the COVID-19 NEP. This could occur anytime OSHA comes to a construction employer’s site for an inspection based on a complaint or reportable injury or illness. 

It is also conceivable that OSHA may try to open an inspection based on the NEP against multiple contractors on a multi-employer site when OSHA is there for an unprogrammed inspection based on a complaint or report of injury or illness relating to a single contractor.

What an Inspection Might Look Like Under the NEP²

Opening Conference. OSHA will begin the inspection with an opening conference but, under the NEP, will conduct the opening conference in a manner to assure the safety of OSHA’s Compliance Safety & Health Officers (CSHOs). This might include conducting the opening conference in large conference rooms that have been appropriately sanitized or conducting the opening conference in an outdoor setting where social distancing can be maintained. 

CSHOs will expect that employer representatives and employees wear face coverings and maintain social distance throughout their interactions. The NEP also directs CSHOs, as appropriate, to speak with the employer’s safety director, infection control director and/or the person responsible for implementing COVID-19 protections in the workplace as part of the opening conference.

Document Review. OSHA will likely request to review the employer’s written safety and health plan, including any portions therein that focus on mitigating or eliminating the hazards posed by COVID-19. OSHA likely will also review:

• the employer’s hazard assessments and policies for PPE;
• documentation showing purchases of PPE;
• any policies or administrative controls that the employer has implemented to promote social distancing at the worksite;
• the employer’s respiratory protection program;
• medical records and logs related to worker exposure incident(s); and
• employee training records pertaining to COVID-19 policies/procedures and PPE. 

Walkaround. Based on the information gathered during the opening conference, document review and any interviews with the employer’s safety managers and employees, OSHA will determine what areas of the site it may wish to inspect to determine if there is COVID-19 exposure. This likely would include areas OSHA believes that employees are either not adhering to social distancing or face-covering requirements or points at the jobsite where employees are within six feet of one another and may pose an increased risk for transmission of the virus. 

What Construction Employers Can Do to Prepare for the NEP

To prepare for a programmed or unprogrammed inspection under the NEP, construction employers need to adopt a written COVID-19 policy that covers its controls and strategies for reducing or eliminating COVID-19 exposure in its workplace. The employer will need to train all employees on its COVID-19 policies and procedures, including policies relating to the wearing of facial coverings, use of other PPE and maintenance of social distancing procedures. 

The COVID-19 policies and procedures should include protocols for consistently cleaning and sanitizing the workplace. Special attention should be paid to cleaning and sanitizing common and high-touch areas of the worksite (including equipment cabs, steering wheels, restrooms, doorknobs and phones within mobile office trailers and break areas if applicable). Employers should train employees on the hazards of any chemicals or disinfectants used in the workplace and maintain a written program and applicable safety data sheets to comply with OSHA’s Hazard Communication Standard. 

Finally, employers should promote social distancing through staggering shift start and stop times and lunch breaks to reduce the contact between employees where possible. Likewise, employers should limit capacity in conference rooms, break rooms, offices and restrooms. Finally, employers should consider developing planned walking routes around the jobsite that encourage a one-way flow of traffic to reduce head-on or face-to-face contact among employees.

Potential Heat Stress Implications of COVID-19 Programs

For now, it appears construction employers and employees alike will face another summer of wearing facial coverings to mitigate the spread of COVID-19. Some studies have suggested that the wearing of masks can exacerbate heat stress in the workplace. 

Employers will need to be prepared to provide additional breaks (potentially in employees’ individual cars where they can sit in the shade and air conditioning), and potentially start work earlier in the morning to avoid the worst of the heat and humidity during the day. 

Employers should also provide stocks of additional masks and facial coverings so that employees can exchange sweat-soaked masks for a dry mask that may allow better breathability.

While many employers may wonder why OSHA is adopting a COVID-19 NEP at a time where more and more persons are being vaccinated, the Biden administration and OSHA have signaled that protecting workers from COVID-19 during the coming months will be a top priority. 

As such, employers must implement policies and trainings and enforce their COVID-19 protocols, to protect workers and to avoid being cited under the NEP and the OSH Act’s general duty clause.