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July 13, 2021
OSHA revises its COVID-19 enforcement

The Occupational Safety and Health Administration (OSHA) announced on July 8 changes to both its national emphasis program (NEP) and interim enforcement policy for workplace COVID-19 hazards. Under the revised enforcement policy, agency inspectors will now fully enforce the respiratory protection standard and stop exercising the discretion used to address respirator supply shortages early in the COVID-19 pandemic.

The agency updated its NEP to focus resources on enforcing standards for the healthcare industry and nonhealthcare industries most at risk for COVID-19 exposure, including meat and poultry processing. Healthcare facilities and services targeted in the NEP include ambulance, dentist and physician, home healthcare, hospitals, assisted-living and continuing-care, general medical and surgical, psychiatric, substance abuse, skilled nursing, and specialty.

While OSHA removed a list of secondary industries, the primary list of industries targeted under the emphasis program includes correctional facilities; postal service; discount department stores; full-service and limited-service restaurants; general warehousing and storage; supermarkets and other grocery stores, except convenience stores; and temporary employment services.

OSHA’s COVID-19 emergency temporary standard (ETS) for healthcare and healthcare support services became effective immediately on June 21, with a compliance deadline of July 6 for most of the emergency rule’s provisions, and July 21 for the training, ventilation, and barrier provisions. The agency issued inspection and enforcement procedures on June 28. The ETS contains provisions for a written COVID-19 plan, patient and nonemployee screening and management, personal protective equipment (PPE) and physical barriers for infection control, ventilation, cleaning, and disinfection, as well as anti-retaliation, training, and recordkeeping requirements.

OSHA also announced on July 8 that it will publish a notice in the Federal Register to extend the comment period for the COVID-19 healthcare ETS to August 20, giving stakeholders an additional 30 days to review the ETS and collect data and other information needed for comment.

The updated interim enforcement response plan (IERP) replaces a policy issued March 12. Changes include:

  • Enforcing protections for workers in nonhealthcare industries who are unvaccinated or not fully vaccinated;
  • Agency inspectors will stop exercising enforcement discretion for temporary noncompliance with the respiratory protection standard where respirator supplies and services are readily available; and
  • Inspectors also will no longer exercise enforcement discretion for the same requirements in other health standards, where full compliance may have been difficult for some nonhealthcare employers due to the COVID-19 pandemic.

The agency also acknowledged that the Food and Drug Administration (FDA) recently revoked emergency use authorization to foreign-made filtering facepiece respirators (FFRs), including KN-95s, as well as authorization for reusing decontaminated FFRs like N95s. Employers now are better positioned to provide NIOSH-approved N95s rather than using non-NIOSH-approved respirators or reusing decontaminated disposable respirators, according to the FDA.

Under the IERP, OSHA area offices will continue to prioritize inspections of COVID-19-related fatalities, multiple hospitalizations, and complaints or reports of potential employee exposures to COVID-19-related hazards. Area offices also will schedule programmed inspections of establishments with elevated rates of respiratory illnesses in calendar year 2021.

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