April 17, 2020

Last night, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued new guidance to its enforcement staff on how to handle situations in which employer compliance is hampered due to the ongoing COVID-19 public health emergency. The guidance also includes an Annex listing specific examples of standards for which OSHA is finding compliance difficult during the present crisis, including the standards for: (1) respirator fit testing and training; and (2) construction crane operator certifications.

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.      

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 shall take such efforts into strong consideration in determining whether to cite a violation. In order to ensure that corrective actions have been taken once normal activities resume, OSHA will develop a program to conduct monitoring inspections from a randomized sampling of cases where violations were noted but not cited.  To accommodate this, CSHOs shall enter the code N-10-ABATEMENT DEFFERED in the OSHA Information System to denote such cases.  Additional guidance on monitoring will be provided at a later date.

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