On July 13, 2023, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced a new National Emphasis Program (NEP) that will go into immediate effect and is intended to remain in place for three years. The NEP, which will cover both programmed and unprogrammed inspections, will focus on identifying, reducing or eliminating hazards relating to warehouse and distribution center operations.
The NEP will target employers engaged in warehousing and distribution center operations (including mail and postal processing and distribution centers, couriers and express delivery services, local messengers and local delivery industries), as well as high-injury-rate retail operations. Retail inspections under the NEP will focus on loading and storage areas; however, the inspection may expand into other areas of the establishment if OSHA has reason to believe hazards exist in those areas. The NAICS codes for targeted establishments are provided in Tables 2 and 3 of the NEP.
Inspections under the NEP will focus on safety and health hazards common to the warehousing and distribution center industries, including without limitation: struck-by, caught-in-between, slips, trips and fall hazards; blocked aisles; means of egress; and powered industrial vehicles and other material handling equipment. These inspections will focus on OSHA’s standards for walking-working surfaces, exit routes and emergency planning, personal protective equipment, fire protection, and materials handling.
In addition, each enforcement effort under the NEP will include an assessment of heat or ergonomic hazards. If OSHA determines either of these hazards is present, a health inspection will be conducted. Because OSHA does not have a standard addressing heat or ergonomic hazards, it generally relies on the general-duty clause for enforcement in these areas.
OSHA has demonstrated increased scrutiny of heat-related hazards under the Biden administration. In September 2021, OSHA established a new enforcement initiative directing its compliance safety and health officers to prioritize heat-related inspections on “heat priority days” — days when the heat index exceeds 80°F. The following month, OSHA published an advanced notice of proposed rulemaking (ANPRM) on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. OSHA is still reviewing comments on this ANPRM to develop a proposed standard. In April 2022, OSHA established a National Emphasis Program on Outdoor and Indoor Heat-Related Hazards (heat NEP). Although OSHA is still developing its own heat-specific standard, several states (California, Washington and Minnesota) have implemented heat-related worker protections in recent years.
Under the NEP, OSHA will screen for heat-related hazards by reviewing injury and illness logs, worker interviews and general observations made during the establishment walk-through. If OSHA determines heat-related hazards are present, it will expand the scope of the inspection in accordance with the heat NEP.
OSHA also does not have an ergonomics-specific standard. However, OSHA has issued many guidelines and recommendations on ergonomics and the prevention of musculoskeletal disorders in the workplace. This includes guidance specific to the warehousing industry. In addition, California has a state-specific ergonomics standard. In inspections under the NEP, OSHA will screen for ergonomic hazards through a review of injury and illness logs, worker interviews and observations made during the establishment walk-through. If OSHA determines ergonomics hazards are present, it will conduct a health inspection.
State plans are required to participate in the NEP. Each state plan has 60 days to provide notice to OSHA indicating whether it will adopt or already has in place an emphasis program targeting the designated industries. State plans have six months to complete adoption of an emphasis program that is at least as effective as the NEP.
Recommendations for Employers
Employers in targeted industries should now review their safety policies and practices as well as OSHA recordkeeping requirements to ensure compliance. Employers in targeted industries also may consider reviewing or developing internal guidelines and procedures for handling OSHA inspections.
To prepare for heat- and ergonomic-related enforcement activities, employers should review related guidance, including state requirements. In general, warehousing and distribution center employers should consider use of interim practices to counter work-related heat exposure in work environments that lack air conditioning, including fans, water stations and air-conditioned break rooms. With respect to ergonomics concerns, employers should review relevant work methods and appropriately utilize personal protective equipment, including standing mats and proper footwear, as well as training designed to reduce the likelihood of common injuries.
For questions related to compliance with OSHA standards or handling OSHA inspections, contact any of the authors or another member of the McGuireWoods labor and employment practice group.