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OSHA Outlines Discretion in Issuing Citations During Coronavirus Pandemic based on Employer’s Good Faith Efforts

On April 16, 2020, OSHA issued an Enforcement Memorandum directed to Regional Administrators and State Plan Designees giving them Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic.  Under the Memo, OSHA acknowledges that some “employers may face difficulties complying with OSHA standards due to the ongoing health emergency” since business closures and other restrictions “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.”  OSHA also recognized that employee participation in training or access to medical testing facilities could likewise be limited due to business closures and other restrictions related to COVID-19.  The Memo noted for example that several groups have suspended occupational spirometry and audiometric evaluations to minimize the risk of exposure to Coronavirus.

Based on this new reality, OSHA Area Offices and Compliance Safety and Health Officers (CSHOs) are instructed during inspections to consider an employer’s good faith efforts to comply with safety standards which require annual or recurring audits, reviews, training, or assessments.  In assessing an employer’s good faith efforts, the Memo advises that CSHO’s should examine whether the employer thoroughly explored all compliance options such as using virtual training or remote communications where possible.  This includes considering other 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 cases where compliance is not possible, CSHOs must also look to see if the employer ensured that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained.  Likewise, if an employer cannot comply with OSHA-mandated training, audit, assessment, inspection, or testing requirements due to the closure of workplaces by local authorities, employers should still demonstrate a good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace.

To the extent an employer can show that it made good faith effort to comply, Area Offices have the discretion to take such efforts into “strong consideration” in determining whether to issue a citation.  In such cases, Area Offices must include sufficient documentation to support the decision (e.g., notes on the efforts the employer made to comply, letters or other documentation showing that providers had closed).  If the employer is unable to demonstrate any efforts to comply, then a citation can be issued as appropriate under existing enforcement policy.

The Memo provides several examples of situations where enforcement discretion should be considered.  This includes annual audiograms that had to be canceled due to on-site visitor restrictions and social distancing protocols.  In that case, OSHA would not cite the employer for failing to conduct annual audiograms provided that the employer: “considered alternative options for compliance, implemented interim alternative protective measures, where possible, and shows a good faith effort to reschedule the mobile facility as soon as possible.”  Similarly, OSHA will not cite an employer for failing to conduct annual refresher respirator training that could not be conducted due to travel restrictions for the consultant again if the employer made good faith efforts to comply and to reschedule the training as soon as the restrictions are lifted.  OSHA also provided examples related to annual Process Safety Management requirements, hazardous waste operations training, maritime crane testing and certification, construction crane operator certification and medical evaluations.

OSHA also stated that it will develop a program to conduct monitoring inspections from a randomized sampling of cases where violations were noted but not cited under this policy to ensure that corrective actions are taken by the employer once normal activities resume.  CSHOs have been directed to code such cases for future review and OSHA stated that additional guidance on monitoring will be provided at a later date.

The Memo is effective immediately and will remain in effect until further notice.  OSHA noted that this guidance is due to the unique public health crisis related to COVID-19 and is time-limited. 

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Jackson Lewis P.C. © 2021National Law Review, Volume X, Number 110
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About this Author

Raymond Perez, Attorney, Jackson Lewis Law Firm, FLSA, Atlanta, Georgia
Of Counsel

Raymond “Ray” Perez is of Counsel in the Atlanta, Georgia, office of Jackson Lewis P.C. 

Mr. Perez practices in all areas of labor and employment law with a focus on FLSA/Wage-Hour laws, employment discrimination, immigration matters, unemployment compensation, occupational safety and health (OSHA), affirmative action programs and policies (OFCCP), employment policies and handbooks, personnel and Form I-9 audits, contract issues, federal contractor provisions and responsibilities, litigation in all forums and litigation avoidance and defense...

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