In a nod to the challenges facing many employers during the ongoing pandemic, the Occupational Safety and Health Administration has issued a “discretionary enforcement policy” titled “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts during the Coronavirus Disease 2019 (COVID-19) Pandemic.” This policy is intended to be applied across both federal and state OSHA jurisdictions.

If an employer has not been able to comply with “annual or recurrent audits, reviews, training, or assessments” because of the COVID-19 pandemic, OSHA Area Offices have the discretion not to issue citations. But, if non-compliance is to be excused, OSHA must conclude that an employer has tried in good faith to comply, but has been unable to do so because of COVID-19-related reasons, such as the unavailability of third-party consultants or industrial hygiene services.

OSHA lists the following examples where compliance might temporarily not be possible:

  • Annual audiograms if the employer has this testing provided by an outside vendor who cannot provide the service right now.

  • Process safety management requirements such as process hazard analysis revalidation, review of operating procedures, and refresher training, if the employer contracts with a third-party consultant to conduct the PHA revalidation or review of operating procedures who cannot visit the employer’s location due to travel restrictions and shelter-in-place orders.

  • Respirator fit testing, medical evaluation, and training if a third-party consultant cannot conduct the fit testing because of travel restrictions, or a medical provider cannot perform a pulmonary function test that was deemed by the provider to be necessary before medical clearance to wear a respirator could be given.

  • Crane operator certification if an operator cannot be re-certified or re-licensed because of travel restrictions or social distancing protocols.

In each of these scenarios, to be excused from compliance, an employer would have to show that it considered alternative ways to comply, implemented alternative protective measures, where possible, and attempted in good faith to reschedule the required compliance as soon as possible.

Lessons Learned

Before you take much comfort in this relaxation of certain compliance obligations, please remember that this policy ultimately depends on each Area Office exercising its discretion whether to accept your explanation for not complying. The policy leaves lots of wiggle room for OSHA to still conclude that it was not impossible to comply and that you could have done more to comply. While OSHA is no doubt offering this guidance in good-faith recognition of the very real challenges facing employers, do not assume that this means you are excused from your compliance obligations. If you truly cannot comply, then make sure you have created a compelling explanation, with documentation, showing your good-faith efforts both to comply and to protect your employees in the interim until you can fulfill your compliance obligations.

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