OSHA Says They Will Now Consider Employers’ Good Faith Compliance During COVID-19 Pandemic

Employers are facing difficulties complying with OSHA training and testing standards due to the COVID-19 pandemic. The national and local response to the COVID-19 crisis has made it difficult for employers to provide training and testing for essential safety activities. Employees, whether due to business closures or furlough/layoffs, are unable to participate in these essential, OSHA mandated safety activities.

Also, with the health crisis gripping the country and the world, access to medical testing facilities are greatly limited or have been suspended, adding to the difficultly that employers are having complying with OSHA training and testing mandates.

New Good Faith Standard

In response to these current realities, OSHA has issued a new enforcement memorandum stating that their Area Offices will now assess employers’ efforts to comply with standards that require training, testing, or other safety requirements. Instead of focusing on results, compliance officers are to determine whether employers are making good faith efforts to remain in compliance with training and testing mandates. For example, the guidance memorandum suggests that compliance officers should evaluate whether employers have implemented other methods to remain in compliance with training and testing protocols including training by virtual or remote communication.

If an employer is unable to remain in testing and training compliance, compliance officers are to evaluate whether the employer has implemented procedures to reschedule training/testing procedures as soon as logistically possible. This would include cases where an employer was required to close due to a local “stay at home” order. In this situation, the employer must demonstrate a good faith effort to comply upon re-opening. In these circumstances, employers must continue to provide safeguards to ensure that employees are not exposed to hazards that could be the result of lack of training or preparedness.

If an employer is unable to demonstrate good faith efforts to comply with training and testing standards, OSHA may issue a citation. OSHA specifically listed the following situations where enforcement discretion should be considered:

1. Annual Audiograms
2. Annual process safety management requirements
3. Hazardous waste operations training
4. Respirator fit testing and training
5. Maritime crane testing and certification
6. Construction crane operator certification; and
7. Medical evaluation.

Bottom Line

Even though OSHA is giving employers a break in complying with OSHA training, inspection, and testing requirement, employers must still show they are making good faith efforts to comply with these requirements and must continue to maintain safe work environments under the general duty clause.