By Brent I. Clark, Benjamin D. Briggs, James L. Curtis, Ilana R. Morady, Patrick D. Joyce, Adam R. Young, and Craig B. Simonsen
Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has issued Interim Guidance to advise compliance safety and health officers (CSHOs) to evaluate an employer’s good faith efforts to comply with certain safety and health standards during the coronavirus pandemic (COVID-19).
We previously blogged about OSHA’s Interim Enforcement Response Plan for COVID-19 which was intended to provide instructions and guidance to Area Offices and CSHOs for handling COVID-19-related complaints, referrals, and severe illness reports.
Now, new Interim Guidance acknowledges that COVID-19 infection control practices may limit the availability of employees, consultants, or contractors who would normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services for employers. The Guidance also notes that employee participation in safety training may be precluded by business closures and other restrictions.
Under the new temporary Interim Guidance, during an inspection, CSHOs should “assess an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training or assessments.” Examples of situations where enforcement discretion should be considered include annual audiograms, annual Process Safety Management requirements, HAZWOPER operator training, respirator fit testing and training, crane operator certification, and medical evaluations.
CSHO’s are directed to evaluate if the employer:
- Explored all options to comply with applicable standards (e.g., use of virtual training or remote communication strategies);
- Implemented interim alternative protections, such as engineering or administrative controls; and
- Rescheduled required annual activity as soon as possible.
For employers that were unable to comply with OSHA requirements because local authorities required the workplace to close, a demonstration of good faith should be shown to 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 Interim Guidance takes effect immediately, and remains in effect until further notice.
For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.