Occupational Safety and Health Administration (“OSHA”), the federal agency charged with ensuring safe working conditions and enforcing related government standards, just recently released a memorandum regarding enforcement of OSHA standards during the COVID-19 pandemic.
In the memorandum, the OSHA recognized the difficulties faced by employers in complying with OSHA standards amidst the COVID-19 pandemic. In light of these difficulties, OSHA announced that it will give strong consideration to an employer’s good faith attempts to comply with OSHA standards in its citation determination.
The memorandum provides that OSHA Compliance Safety and Health Officers will evaluate whether an employer made good faith efforts to comply with OSHA standards and where compliance is not possible, it will consider whether the employer ensured that employees were not exposed to hazards for which they were unprepared or untrained. In determining whether employers made good faith compliance efforts, Officers will evaluate whether the employer explored all options to comply with the standards (including virtual training or remote communication strategies), any interim alternative protections implemented by the employer, and whether the employer took steps to reschedule the required annual activity as soon as possible. If an employer is unable to comply with OSHA-mandated training, audit, assessment, inspection, or testing requirements because the workplace is closed due to COVID-19, then the employer should demonstrate a good faith attempt to comply with the requirements as soon as possible following the re-opening of the workplace.
The memorandum provides several examples of areas where enforcement discretion should be considered if an employer makes a good faith attempt to comply with OSHA standards, including the following:
- Annual Audiograms
- Annual Process Safety Management requirements
- Hazardous Waste Operations Training
- Respirator Fit Testing and Training
- Maritime Crane Testing and Certification
- Construction Crane Operator Certification
- Medical Evaluation
In sum, if an employer is unable to comply with OSHA standards because of issues related to COVID-19, then the employer’s good faith attempt at compliance will be strongly considered in the citation decision. However, if the employer is unable to comply with such standards because of COVID-19 related issues, then the employer should do the following to demonstrate its "good faith attempt at compliance":
- Explore all alternative methods of compliance, including virtual training or remote communication strategies;
- Implement interim employee protections;
- Take steps to comply with the standards as soon as possible, including rescheduling any required annual activity; and
- Document all of the above activity.
If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at
Richard S. Rosenberg
Katherine A. Hren
Ballard Rosenberg Golper & Savitt LLP