US | COVID-19 | OSHA Provides Guidance on “Good Faith Efforts” to Comply with Standards During Pandemic

OSHA’s memorandum provides employers with guidance on what constitutes good faith efforts to comply with OSHA standards that they cannot fully comply with during the COVID-19 crisis. Employers are faced with difficulties such as business closures, travel restrictions, group size restrictions, facility visitor prohibitions, and stay-at-home requirements. These may impact the availability of employees, consultants, or contractors who normally provide training, auditing, inspections, testing, and other services. Access to medical testing facilities may also be limited or suspended. For example, the American College of Occupational and Environmental Medicine recommends postponing spirometry testing because of concerns about spreading droplets containing the virus. The Council for Accreditation in Occupational Hearing Conservation recommends that audiometric evaluations be suspended to minimize the risk to healthcare workers and conserve PPE.

What to Expect from CSHOs

CSHOs will assess an employer’s efforts to comply with annual or recurring audits, reviews, training, or other assessments. They will also determine whether the employer made good faith efforts to comply with OSHA standards. If compliance was not possible, CSHOs will ensure that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained. This good faith determination should include whether the employer thoroughly explored all options to comply (such as virtual training or remote communication strategies), and whether any interim alternative protections have been implemented or provided. Additionally, employers must take steps to reschedule the required annual or recurring activity as soon as possible. If an employer cannot comply with required a required training, audit, assessment, inspection, or test because state or local authorities required the workplace to close, an employer should show a good faith attempt to meet the requirements as soon as possible after re-opening. Employers should document any good faith efforts made to comply with OSHA standards. This will minimize the risk that a CSHO will cite them for violations. Finally, once normal operations resume, OSHA will conduct monitoring inspections of randomly sampled cases where CSHOs used enforcement discretion. OSHA will provide additional guidance on monitoring in the future.

Areas of Discretion

OSHA’s examples of situations where discretion should be considered include:

• Annual Audiograms An employer contracts with mobile audiometric testing facility, who is scheduled to arrive at the employer’s site during the crisis. Due to on-site visitor restrictions and social distancing protocols, the employer cancels the visit. OSHA will not cite the employer for failing to conduct annual audiograms if the employer considered alternative options for compliance; implemented interim alternative protective measures, where possible; and shows a good faith effort to reschedule the mobile facility as soon as possible.
• Annual Process Safety Management Requirements (Process Hazard Analysis (PHA) Revalidation, Review of Operating Procedures, and Refresher Training) An employer contracts with a consultant to conduct PHA revalidations, and the revalidation is due during the crisis. Because of travel restrictions and shelter-in-place orders, the consultant is unable to fly to the site. OSHA will not cite the employer for failing to meet the three-year revalidation requirement if the employer considered alternative options for compliance; implemented alternative protective measures, where possible; and shows a good faith effort to reschedule the PHA revalidation as soon as the restrictions and orders are lifted.
• Hazardous Waste Operations Training An employer operating a site where there is potential for releasing hazardous materials uses a contractor for emergency response and containment. That contractor also conducts on-site training for the employees that may be exposed to hazardous substances during a release. The annual training was scheduled to take place during the crisis but was cancelled due to the plant shutdown from state and local mandates. OSHA will not cite the employer for failing to conduct the annual refresher training, if the employer shows a good faith effort to reschedule the training as soon as the shutdown is lifted.
• Respirator Fit Testing and Training Employees must use respirators in spray booths to apply a finishing coat to products. An annual refresher training is scheduled during the crisis, but the consultant is unable to arrive because of travel restrictions. OSHA will not cite the employer if the employer considered alternative options for compliance; implemented interim alternative protective measures, where possible; and shows a good faith effort to reschedule the training as soon as restrictions are lifted. OSHA has additional enforcement guidance regarding respiratory protection.
• Maritime Crane Testing and Certification An employer contracts an accredited cargo gear company to inspect and certify the employers’ gear because its OSHA 71 certificate is about to expire. The inspection is scheduled but due to travel restrictions, on-site visitor constraints, and social distancing protocols, the inspection cannot take place. OSHA will not cite the employer for having expired cargo gear accreditation certificates if the employer considered alternative options for compliance; implemented interim protective measures, where possible; and shows a good faith effort to reschedule the inspection as soon as possible.
• Construction Crane Operator Certification A certified operator is unable to undergo a re-certification or re-licensing examination due to travel restrictions and social distancing protocols. OSHA will not cite the operator’s employer for allowing the operator to work with an expired certification as long as the employer considered alternative options for compliance; implemented interim alternative protective measures, where possible; and shows a good faith effort to reschedule and complete the operator’s re-certification as soon as possible.
• Medical Evaluation In addition to engineering controls, an employer provides employees with respirators due to formaldehyde exposure. The employer cannot conduct the pulmonary function testing (spirometry) because the American College of Occupational and Environmental Medicine recommends suspending testing. OSHA will not cite the employer for failing to conduct the periodic monitoring if the employer implemented interim alternative protective measures, where possible, and shows a good faith effort to reschedule the testing once the suspension is lifted.