As businesses begin re-opening and more people are returning to work, it is good to know that OSHA has an understanding that some companies may have had difficulty complying with OSHA standards during the Pandemic shut-down.
OSHA published a Memorandum entitled, “Discretion in Enforcement when Considering an Employer's Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic.” Even though this OSHA Memorandum was published in April, it is worth taking another look at it.
The Memorandum explains that OSHA understands that COVID pandemic has created a lot of new and unusual situations to deal with at work, and that many factors have affected our businesses over the past several months that have hindered our ability to comply with OSHA standards, such as: 1) employees not showing up for work so they miss training sessions; 2) consultants not able to travel to your facility to perform an audit; 3) regularly scheduled testing was suspended to prevent the spread of COVID-19; and the list goes on.
Not a Free Ride
So, OSHA gets it and they are trying to take into consideration these hardships when it comes to your compliance or lack thereof. Now that COVID-19 cases are decreasing in some geographic areas, OSHA is returning to their original inspection planning policy for prioritizing and performing inspections. That should come as no surprise. The Inspectors are returning to their jobs too. But under the circumstances, and per the Memorandum, OSHA will be “Considering Good Faith Efforts” made to get work done and stay in compliance with OSHA regulatory requirements during pandemic.
But, it is not a “Free Ride.” You don’t automatically pass Go and receive a pardon, so to speak. Instead, there are 3 stipulations to consider:
Let’s break this down.
Annual or Recurring Requirements: In its memorandum, OSHA provides several examples in an Annex of types of situations where discretion can be applied. You can read the details for yourself here, but they include annual audiograms, annual HAZWOPER training, annual fit testing and Process Safety Management requirements.
Good Faith Effort: Inspectors will be evaluating whether you have made a “Good Faith Effort” to comply with OSHA standards applicable to your site. What interim measures might have been employed if full measures could not be implemented to ensure employees are not exposed to hazards for which they were not trained? They will be asking you to demonstrate that you “thoroughly explored all options to comply with applicable standard”. For example, did you determine whether you could employ virtual or remote communication strategies to conduct training instead of holding in-classroom training.
Demonstrate the “Good Faith Effort” to comply: This means you need documentation that demonstrates you made the effort. That could include letters (or emails) showing that a consultant has closed, a memo-to-file explaining your situation and how compliance could not be met because of pandemic-related circumstances. If you cannot demonstrate your effort to comply, the memorandum says that “a citation may be issued” according to current OSHA enforcement policy. And, if a citation is issued, OSHA may return to conduct a monitoring inspection.
OSHA will be using enforcement discretion on whether or not to issue a citation to those companies that can demonstrate that they were working in Good Faith to comply with OSHA’s periodic requirements, but the COVID-19 pandemic played a significant role in preventing their compliance.
As always, it is best to be prepared with solid documentation, than it is to risk being cited when OSHA shows up at your door.