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On April 16, 2020, OSHA issued an enforcement memo entitled “Discretion in Enforcement when Considering an Employer's Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic.”

The enforcement memo cites the challenges facing many businesses due to the pandemic and the need for enforcement officers to exercise discretion in light of the employer’s good faith effort to comply with OSHA standards. The memo states:

“Widespread business closures, restrictions on travel, limitations on group sizes, facility visitor prohibitions, and stay-at-home or shelter-in-place requirements 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.  Business closures and other restrictions and limitations may also preclude employee participation in training even when trainers are available.  In other situations, access to medical testing facilities may be limited or suspended.”

As in so many other cases, document your good faith efforts, particularly those associated with the conditions cited above. Additionally, be especially vigilant to document your local pandemic timeline as many of the shelter in place and stay-at-home orders are issued (and lifted) locally.

Example on the activities noted in the enforcement memo are:

• Annual audiograms.
• Annual process safety management requirements such as PHA revalidation, review of operating procedures, and refresher training.
• Hazardous waste operations training.
• Annual respirator for fit testing & training.
• Maritime crane testing & certification.
• Construction crane operator certification.
• Medical evaluation.

The complete text of the enforcement memo can be found online.