Recognizing the difficulties employers are facing during the ongoing pandemic, the Occupational Safety and Health Administration (“OSHA”) released an enforcement memo, entitled “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts during the Coronavirus Disease 2019 (COVID-19) Pandemic.” This guidance relaxes enforcement for failures to provide annual training or conduct other routine audits due to COVID-19.
In the memo, OSHA stated that during an inspection, Compliance Officers should evaluate whether the employer made good faith efforts to comply with applicable standards. Where compliance was not possible, Compliance Officers should ensure that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained.
OSHA lists several examples where compliance might temporarily not be possible:
- Annual audiograms if the employer has this testing provided by an outside vendor who cannot provide the service right now.
- Hazardous waste training may be delayed if it could not be scheduled due to limited operations or social distancing protocols.
- Respirator fit testing, medical evaluation, and training if a third-party consultant cannot conduct the fit testing because of travel restrictions.
- Crane operator certification if an operator cannot be re-certified or re-licensed because of travel restrictions or social distancing protocols.
OSHA has indicated that it will not cite employers for failing to comply so long as the employer can show that it considered alternative ways to comply, that it implemented alternative protective measures and attempted in good faith to reschedule the required compliance as soon as possible.
Complying with OSHA standards can be difficult. If you need help with your OSHA policies or in dealing with an OSHA inspection, we recommend you consult with experienced construction counsel to help you navigate these difficult situations.