On April 16, 2020, OSHA issued a new enforcement policy that acknowledges the difficulties faced by employers in complying with certain OSHA standards due to the COVID-19 pandemic.
Under the new policy entitled Discretion in Enforcement when Considering an Employer's Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic (“Good Faith Policy”), OSHA “will assess an employer's efforts to comply with standards that require annual or recurring audits, reviews, training, or assessments.” In situations where employers have made good faith efforts, but have fallen short of strict compliance, OSHA will “take such efforts into strong consideration in determining whether to cite a violation.”
While not all-inclusive, OSHA’s Good Faith Policy specifically references the following situations where employers’ compliance efforts will be considered:
- Annual Audiograms
- Annual Process Safety Management Requirements
- Hazardous Waste Operations Training
- Respirator Fit Testing and Training
- Maritime Crane Testing and Certification
- Construction Crane Operator Certification
- Medical Evaluation
But how do employers know whether their efforts are enough to avoid citations? There is no bright line test, but OSHA provides three factors it will consider when evaluating employers’ good faith compliance efforts:
- Whether the employer took steps to ensure employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained;
- Whether the employer thoroughly explored all options to comply with the applicable standards (e.g., virtual training or remote communication strategies, etc.); and
- Interim alternative protections implemented by the employer or provided to employees (e.g., engineering and administrative controls, rescheduling required annual activity as soon as possible).
While these factors may leave room for debate, one thing is clear: employers who cannot demonstrate any efforts to comply will likely receive citations as appropriate under the applicable standards.