April 17, 2020
OSHA has issued a new memorandum on Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the COVID-19 Pandemic, which applies broadly to all industry sectors and will take effect immediately and remain in effect until further notice.
The memo acknowledges that widespread business closures, restrictions on travel, limitations on group sizes, facility visitor prohibitions, and stay-at-home or shelter-in-place requirements may limit the availability of employees, consultants, or contractors who normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services. In response to these challenges, OSHA is exercising enforcement discretion on regulatory obligations that currently are unfeasible or would pose risk of virus transmission among employees.
The key provisions from the policy are as follows:
- Compliance Safety and Health Officers (CSHOs) should evaluate whether the employer made good faith efforts to comply with applicable OSHA standards and, in situations where compliance was not possible, to ensure that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained. As part of assessing whether an employer engaged in good faith compliance efforts, CSHOs should evaluate whether the employer thoroughly explored all options to comply with the applicable standard(s) (e.g., the use of virtual training or remote communication strategies). CSHOs should also consider any interim alternative protections implemented or provided to protect employees, such as engineering or administrative controls, and whether the employer took steps to reschedule the required annual activity as soon as possible.
- In instances where an employer is unable to comply with OSHA-mandated training, audit, assessment, inspection, or testing requirements because local authorities required the workplace to close, the employer should demonstrate a good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace.
- Where the employer cannot demonstrate any efforts to comply, a citation may be issued as appropriate under existing enforcement policy. However, where an employer has made attempts to comply in good faith, Area Offices shall take such efforts into strong consideration in determining whether to cite a violation. Where enforcement discretion is warranted, Area Offices will ensure that sufficient documentation (e.g., notes on the efforts the employer made to comply, letters or other documentation showing that providers had closed) is provided in the case file to support the decision.
The memo’s annex also lists “Examples of Situations Where Enforcement Discretion Should be Considered,” which discusses enforcement scenarios for:
- Annual Audiograms
- Process Safety Management Requirements (Process Hazard Analysis (PHA) Revalidation, Review of Operating Procedures, and Refresher Training)
- Annual Hazardous Waste Operations Training
- Annual Respirator Fit Testing and Training
- Periodic Maritime Crane Testing and Certification
- Construction Crane Operator Re-Certification or Re-Licensing Examinations
- Periodic Medical Evaluation for Respirator Use