OSHA Says It Will Use Discretion for Employers and Compliance During COVID-19

Last week, OSHA announced that it understands employers may have difficulty complying with OSHA standards due to the pandemic, and it will use discretion when considering employers’ “good faith efforts.”

On April 16, 2020, OSHA announced a news release titled Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic.

OSHA understands that many employers are and will have difficulty complying with OSHA standards due to the pandemic—especially with “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.”

Additionally, OSHA understands that access to medical testing facilities may be limited or suspended.

The April 16 news release says that during the course of an inspection, OSHA Area Offices will assess an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training or assessments. These evaluations will involve an analysis of whether the employer made “good faith efforts” to comply with applicable OSHA standards and, in instances where compliance was not possible, to make sure that no employees were exposed to hazards from tasks, processes or equipment for which they are not prepared or trained.

The news release state that “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 cannot comply with OSHA-mandated compliance measure because local or state 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.

If the employer does not demonstrate any efforts to comply, a citation may be issued as appropriate under existing enforcement policy. Still, Area OSHA Offices will use enforcement discretion to the best of their abilities.

This memorandum is effective immediately and will remain in effect until further notice. Check the OSHA coronavirus page for updates, or go to the OSHA Enforcement Memos page.

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