Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On April 16, 2020, OSHA issued a memorandum, “Discretion in Enforcement when Considering an Employer's Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic” (Discretion Memo). While the Discretion Memo’s title suggests that it discusses flexibility for employers meeting COVID-19-related standards, the Memo actually outlines employer obligations as they relate to non-COVID-19-related standards during the pandemic.
The Discretion Memo highlights that because COVID-19 has had an unprecedented impact on employer operations, Compliance Safety and Health Officers (CSHOs) should take a practical approach when evaluating whether employers are meeting their “training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services” obligations. The Memo provides that CSHOs should look to evaluate whether employers have “engaged in good faith compliance efforts.” In those situations where compliance was not possible, CSHOs are further directed to determine whether “employees were  exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained.”
In determining whether an employer has made a good-faith effort to comply, CSHOs are directed to review 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).”
- The employer implemented any interim alternative protections “such as engineering or administrative controls.”
- “The employer took steps to reschedule the required annual activity as soon as possible.”
Where employers have, technically, failed to meet a standard, but demonstrated good-faith efforts to comply, Area Offices are directed to strongly consider whether to cite a violation, and where discretion is warranted, to properly document the case file supporting the decision not to issue a citation. Consistent with documenting case files, the Discretion Memo notes that “[i]n order to ensure that corrective actions have been taken once normal activities resume, OSHA will develop a program to conduct monitoring inspections from a randomized sampling of cases where violations were noted but not cited.” If, however, an “employer cannot demonstrate any efforts to comply, a citation may be issued as appropriate under existing enforcement policy.”
The Discretion Memo includes an Appendix that lists a number of examples where an employer will have technically violated a standard, but where no citations should be issued. The Appendix’s examples can be distilled to employers’ failing to timely conduct annual training, testing, and certifications because of COVID-19-related workplace closures, social distancing requirements, and/or travel restrictions.
Employers should carefully review the Memo to determine how it may apply to ongoing compliance obligations during the COVID-19 outbreak.