By Gabrielle Sigel and Leah M. Song

On April 17, 2020, OSHA posted an April 16, 2020 enforcement guidance, which, for the first time, recognized that due to COVID-19, employers were not able to feasibly comply with a wide-range of OSHA regulatory requirements.  In a memorandum titled, “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts during the Coronavirus Disease 2019 (COVID-19) Pandemic” (“Good Faith Guidance”).  OSHA instructed its Compliance Officers that they should exercise enforcement discretion and not issue citations for regulatory violations if employers made a “good faith effort” but ultimately could not comply with regulations requiring “annual or recurring audits, reviews, training, or assessments” (collectively, “Recurring Requirements”).  The Good Faith Guidance takes effect immediately, applies to all OSHA-regulated industries, and continues “until further notice.”

In support of its enforcement discretion decision, OSHA found that, due to widespread business shutdowns in response to COVID-19, many employers were not able to perform certain mandatory Recurring Requirements, such as annual audiograms, Process Safety Management revalidations and reviews, respirator spirometry testing, annual training requirements, and inspection, certification, and relicensing activities.  As further support, OSHA noted that the American College of Occupational and Environmental Medicine had advised that all occupational spirometry testing for respirator use be suspended, and the Council for Accreditation in Occupational Hearing Conservation recommended that all audiometric evaluations be suspended. 

Given these circumstances, OSHA stated that an employer should not be cited for failure to comply with Recurring Requirements if the employer demonstrates that it made “good faith efforts,” as follows:

• “Thoroughly explored all options” to comply with regulatory requirements, such as virtual or remote trainings;
• Implemented any interim alternative protections, such as engineering or administrative controls;
• Took steps to reschedule the required annual activity as soon as possible; and
• Ensured that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained

If an employer was unable to comply with Recurring Requirements because the workplace was required to close entirely, the employer should demonstrate a “good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace.” 

Given the Good Faith Guidance, employers would be well-advised to document their good faith efforts to comply with Recurring Requirements and why it was not possible to comply.  Although OSHA Compliance Officers have been directed to take an employer’s good faith efforts into “strong consideration” before issuing a citation, the Compliance Officer must document the regulatory violation and the good faith efforts in its case file.  In addition, in a program to be developed “at a later date,” OSHA plans to conduct monitoring inspections of locations where violations occurred but were not cited to “ensure that corrective actions have been taken once normal activities resume.”

The Good Faith Guidance supplements other previously issued OSHA enforcement discretion guidance memos and enforcement directives arising out of the COVID-19 health emergency, which have been analyzed in Jenner & Block’s Corporate Environmental Lawyer blog.

For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s COVID‑19 Resource Center and the Corporate Environmental Lawyer blog.