April 23, 2020

OSHA Compliance Officers to Use “Discretion” When Enforcing Standards

An April 16 OSHA memorandum to regional administrators advises agency compliance officers to use their discretion when enforcing OSHA standards due to the difficulties presented by the COVID-19 pandemic. The memorandum acknowledges that widespread business shutdowns and social distancing measures intended to limit spread of the disease have complicated employers’ efforts to comply with OSHA standards and may prohibit employees, contractors, and consultants from providing services such as training, auditing, equipment inspections, testing, and other aspects of safety and industrial hygiene.

OSHA had suspended its requirement for annual fit testing of respirators on March 14. Days later, the American College of Occupational and Environmental Medicine recommended suspending occupational spirometry testing during the pandemic. The Council for Accreditation in Occupational Hearing Conservation followed suit on March 24, issuing a position statement (PDF) that recommended suspending workplace audiometric testing for the duration of the pandemic.

When deciding whether to issue a citation, compliance officers should consider evidence that employers demonstrated “good faith efforts” to comply with OSHA standards, the agency’s memo states. These efforts can include consideration of alternative delivery methods for employee training such as virtual training or remote communication. Interim actions implemented to protect employees, such as engineering or administrative controls, should also inform compliance officers’ deliberations. Employers whose businesses are closed should also demonstrate intent to reschedule required activities as soon as possible after reopening.

After the resumption of normal business activities, OSHA intends to target its inspections to a random selection of employers where violations may have occurred during the pandemic.