Flexibility for OSHA Employer Obligations in the Wake of COVID-19

Due to the unprecedented impact of COVID-19 on the global population, OSHA recently issued a memo directing its Compliance Safety and Health Officers (CSHO) to take a practice approach in determining if an employer has made good-faith efforts to comply with safety obligations, such as training, equipment inspections, auditing, and testing.

The “Discretion in Enforcement When Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic” memorandum provides guidelines for CSHOs to utilize in reviewing employer compliance efforts. Examples include:

• Whether the employer explored all options to comply with regular standards, such as use of virtual training or remote communication strategies.
• Whether interim, alternative protections were implemented or provided, such as engineering or administrative controls.
• Whether the employer took steps to reschedule required annual activities as soon as possible.

Where compliance is not possible, CSHOs are recommended to ensure that employees were not exposed to hazards for which they did not receive adequate training or protections.  In situations where an employer made good-faith efforts to comply, but ultimately failed to meet a standard, CSHOs are directed to consider such efforts before issuing citations.

Finally, in order to ensure corrective actions take place once normal operations resume, OSHA will develop a program to conduct monitoring inspections from a random sampling of cases where violations are found but not cited.  The guidelines in this memo will remain in effect until further notice.

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