OSHA taking ‘good faith’ into account when issuing citations during COVID-19 pandemic

Washington — “Good-faith efforts” by employers to comply with worker safety regulations during the COVID-19 pandemic should be taken into “strong consideration,” OSHA states in an April 16 memo to area offices and inspectors.

“The agency may issue a citation if it finds an employer cannot demonstrate any efforts to comply,” OSHA states in a corresponding press release, adding that, “once normal activities resume,” it will develop a program that looks at random samples of cases “where the agency noted, but did not cite, violations” to ensure corrective actions were taken.

OSHA notes that infection control measures, such as physical distancing, are limiting many employers’ ability to provide training, inspections, testing, auditing, and “other essential safety and industrial hygiene services.” Employees also have limited or no chance to participate in training or medical testing because of business closures and other restrictions.

The agency directs inspectors to evaluate whether an employer:

• Explored all options to comply with applicable standards (e.g., use of virtual training or remote communication strategies)
• Implemented interim alternative protections, such as engineering or administrative controls
• Rescheduled required annual activity as quickly as possible

“Employers unable to comply with OSHA requirements because local authorities required the workplace to close should demonstrate a good-faith attempt to meet applicable requirements as soon as possible following the reopening of the workplace,” OSHA states.

The memo lists examples of situations in which area offices should consider enforcement discretion, including annual audiograms, hazardous waste operations training and construction crane operator certification.

“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 states.