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DOL Considers Employer’s Good Faith Efforts in Enforcement During Pandemic

April 23, 2020

On April 16, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued interim guidance to advise compliance safety and health officers to evaluate an employer’s good faith efforts to comply with safety and health standards during the coronavirus pandemic. This guidance takes effect immediately and remains in effect until further notice. It is time-limited interim guidance in effect due to the current public health crisis. Click “learn more” for further information.

The administration acknowledged that current infection control practices may limit the availability of employees, consultants or contractors who normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services. In addition, business closures and other restrictions may also preclude employee participation in training if trainers are unavailable and access to medical testing facilities may be limited or suspended.

During an inspection, compliance safety and health officers have been directed to assess an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training or assessments. Officers should evaluate if the employer:

  • Explored all options to comply with applicable standards (e.g., use of virtual training or remote communication strategies);
  • Implemented interim alternative protections, such as engineering or administrative controls; and
  • Rescheduled required annual activity as soon as possible.

OSHA will take employers’ attempts to comply in good faith into strong consideration when determining whether it cites a violation. The agency may issue a citation if it finds an employer cannot demonstrate any efforts to comply. To ensure corrective actions employers have taken once normal activities resume, OSHA will develop a program to conduct monitoring inspections from a randomized sampling of cases where the agency noted, but did not cite, violations.

Employers should carefully review the interim guidance to determine how it may apply to ongoing compliance obligations during the COVID-19 outbreak.

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