United States: OSHA Considers Employer's Good Faith Efforts When Enforcing Compliance During Coronavirus Pandemic

On April 17, 2020, the U.S. Occupational Safety and Health Administration (OSHA) released interim enforcement guidance for assessing an employer's compliance efforts with OSHA standards and regulations during the 2019 coronavirus disease (COVID-19) pandemic. The guidance is specifically aimed at standards and regulations that require annual or recurring audits, reviews, training, or assessments. The main point can be summed up as: if an employer is not in compliance with an OSHA standard, inspectors are to assess the employer's "good faith efforts" to comply, and exercise enforcement discretion accordingly.

What does that mean? According to the guidance, inspectors will evaluate whether employers explored all options to comply with OSHA's standards and regulations, implemented alternative protections, and rescheduled required annual and other applicable requirements as soon as possible. The guidance leaves the concept of "good faith" imprecise. What constitutes "good faith" will typically come down to the inspector and respective OSHA area offices.

On the bright side, the guidance provides examples of seven situations in which OSHA encourages the use of discretion in enforcement. Below are the seven examples from the guidance:

Annual Audiograms

An employer contracts with a service that provides a mobile audiometric testing facility. The service was scheduled to arrive at the employer's facility on March 27, 2020, but due to on-site visitor restrictions and social distancing protocols, the employer [canceled] the arrival of the mobile facility. OSHA will not cite the employer for failing to conduct annual audiograms, provided the employer considered alternative options for compliance, implemented interim alternative protective measures, where possible, and show[ed] a good faith effort to reschedule the mobile facility as soon as possible.

Annual Process Safety Management (PSM) Requirements (Process Hazard Analysis (PHA) Revalidation, Review of Operating Procedures, and Refresher Training)

An employer contracts with a consultant to conduct process hazard analysis (PHA) revalidations. A PHA revalidation . . . [of] the employer's ammonia refrigeration process was due to be completed by April 1, 2020, but because of travel restrictions and shelter-in-place orders, the consultant was unable to fly to the employer's location. OSHA will not cite the employer for failing to meet the three-year requirement for conducting a PHA revalidation, provided the employer considered alternative options for compliance, implemented interim alternative protective measures, where possible, and show[ed] a good faith effort to reschedule the PHA revalidation as soon as the travel restrictions and shelter-in-place orders are lifted.

Hazardous Waste Operations Training

An employer operating a site where there is potential for the release of hazardous materials uses a contractor for emergency response and containment. That same contractor also conducts training for all employees working on site that may be exposed to hazardous substances during a release. The annual training was scheduled to take place at the end of March 2020, but was [canceled] due to the plant shutdown following state and local mandates. OSHA will not cite the employer for failing to conduct the annual refresher training, provided the employer show[ed] a good faith effort to reschedule the training as soon as the shutdown has been lifted.

Respirator Fit Testing and Training

As part of an employer's manufacturing operations, employees use spray booths to apply a finishing coat to products, requiring the use of respirators. The employer scheduled annual refresher training for April 1, 2020, but the consultant was unable to conduct the training because of travel restrictions. OSHA will not cite the employer for failing to conduct the annual refresher training, provided that the employer considered alternative options for compliance; implemented interim alternative protective measures, where possible; and show[ed] a good faith effort to reschedule the training as soon as the restrictions are lifted. (For more information refer to OSHA's April 3, 2020 memorandum, Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic. For specific guidance related to healthcare workers, see OSHA's March 14, 2020 memorandum, Temporary Enforcement Guidance – Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak.)

Maritime Crane Testing and Certification

An employer contacts an OSHA Accredited Cargo Gear Company to have the employer's cargo gear inspected and certified because its OSHA 71 certificate is about to expire. The inspection is scheduled to take place at the employer's facility, but due to travel restrictions, on-site visitor constraints, and social distancing protocols, the inspection cannot take place. OSHA will not cite the employer for not having current cargo gear accreditation certificates (OSHA 71s), provided the employer considered alternative options for compliance, implemented interim alternative protective measures, where possible, and show[ed] a good faith effort to reschedule the cargo gear inspection as soon as possible.

Construction Crane Operator Certification

An operator certified in accordance with 29 CFR 1926 Subpart CC (Cranes and Derricks) is unable to undergo a re-certification or re-licensing examination due to travel restrictions or social distancing protocols. OSHA will not cite the operator's employer for allowing the operator to work with an expired certification as long as the employer considered alternative options for compliance, implemented interim alternative protective measures, where possible, and . . . show[ed] good faith in its effort to reschedule and complete the operator's recertification as soon as possible through a certification or licensing body that meets the requirements of OSHA's standard.

Medical Evaluation

Along with engineering controls, an employer operating a plywood manufacturing facility provides employees with respirators to prevent exposure to formaldehyde. In order to conduct a medical evaluation to determine if employees are cleared to wear respirators, the employer contracts with medical professionals to conduct pulmonary function testing, or spirometry. However, because of the American College of Occupational and Environmental Medicine's recommendation, such testing is suspended. OSHA will not cite the employer for failing to conduct the periodic monitoring if the employer implemented interim alternative protective measures, where possible, and show[ed] a good faith effort to reschedule the spirometry testing once the suspension is lifted.

The guidance takes effect immediately and will remain in effect until further notice.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm's Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm's webinar programs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.