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OSHA Issues COVID-19 Enforcement Discretion Guidance

On April 16, 2020 the Occupational Safety and Health Administration (OSHA) issued interim guidance advising inspectors to evaluate employers' good faith efforts to comply with safety and health standards during the coronavirus pandemic.  The guidance recognizes that current COVID-19 infection control practices may limit the availability of employees, consultants or contractors who normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services. Business closures and other restrictions may also preclude employee participation in training if trainers are unavailable and access to medical testing facilities may be limited or suspended.

Inspectors are instructed to assess an employer’s efforts to comply with standards requiring annual or recurring audits, reviews, training or assessments. Officers are instructed to evaluate whether the employer explored all available options to comply with applicable standards (e.g., use of virtual training or remote communication strategies), implemented interim alternative protections, and rescheduled required annual activity as soon as possible.  Employers who were ordered to close should demonstrate a good faith attempt to meet applicable requirements as soon as possible following the re-opening of the workplace.  OSHA will take employers’ attempts to comply in good faith into strong consideration when determining whether it cites a violation. The agency may issue a citation if it finds an employer cannot demonstrate any efforts to comply. OSHA notes that this is interim guidance in effect for a limited period due to the current public health crisis. Visit OSHA’s COVID-19 webpage frequently for updates.  A copy of the guidance is available at the link below.

 

OSHA: Discretion in Enforcement when Considering an Employer's Good Faith Efforts during the Coronavirus Disease 2019 (COVID-19) Pandemic