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OSHA Issues Memo Regarding Discretion in Enforcement When Considering an Employer’s Good Faith Efforts During the COVID-19 Pandemic

During COVID-19 restrictions, OSHA will assess the employer’s effort to comply with established standards pertaining to reoccurring audits, reviews, training and assessment and required activities.

Employers are facing new difficulties, such as availability of employees, consultants or contractors and temporarily closed businesses. New, temporary restrictions in many businesses are also now limited in access to essential safety and industrial hygiene services.

Q: What if OSHA finds our business in violation of an OSHA standard pertaining to audits, reviews, training and required activities during COVID-19 restrictions?

A: OSHA issued a 4/16/2020 Enforcement Memo addressing discretion regarding enforcement when considering an employer’s good faith efforts during the COVID-19 Pandemic. CSHOs will evaluate and document if the company in violation has made good faith to prevent hazards for employees and to adhere to the existing, applicable OSHA standards. These factors will be strongly considered before issuing a citation:

  • Did employer explore options such as remote work;
  • Employer’s interim alternative protections (social distancing, limited staffing);
  • Employer take steps / action to reschedule the required activity (i.e. training, assessment, audit);
  • Sufficient employer documentation of actions toward compliance

If employer shows no effort in compliance, the existing OSHA policies and standards are in effect, and the employer could be subject to a citation for documented violations.

To ensure corrective actions are taken by the employer, OSHA is developing a program to conduct monitoring inspections from random case sampling where violations were documented but not cited. OSHA will be providing additional guidance in the future on this program. For more information regarding OSHA and COVID-19 visit here.

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