As with other regulatory enforcement agencies, OSHA has recently announced a policy related to COVID-19.
On April 16, OSHA released a memorandum regarding an updated enforcement policy. This policy allows for discretion in enforcement when dealing with companies affected by the virus and the associated distancing measures, who acted in good faith to meet all applicable requirements.
It is understood that in some circumstances, business closures and stay-at-home orders may make it impossible for auditing, training, inspections or testing to be completed on time.
In light of these issues, OSHAs policy leaves enforcement at the discretion of individual inspectors. In instances where an employer is unable to comply with OSHA-mandated training, audit, assessment, inspection, or testing requirements because local authorities required the workplace to close, the employer should demonstrate a good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace.
As always, documentation will be key to proving that a facility has acted in good faith to meet applicable requirements. Inspectors will evaluate whether facilities considered all avenues of compliance with applicable requirements (e.g. virtual training or remote communication). They will also consider any interim alternative protections implemented or provided to protect employees, such as engineering or administrative controls, and whether the employer took steps to reschedule the required annual activity as soon as possible.
Where the employer cannot demonstrate any efforts to comply, a citation may be issued as appropriate under existing enforcement policy. However, where an employer has made attempts to comply in good faith, Area Offices will take such efforts into strong consideration in determining whether to cite a violation. Where enforcement discretion is warranted, Area Offices will ensure that sufficient documentation (e.g., notes on the efforts the employer made to comply, letters or other documentation showing that providers had closed) is provided in the case file to support the decision.
The full language of the memo can be found here.