OSHA Understands the Difficulties You’re Facing, But Don’t Expect a Free Pass
From the start of this world-wide pandemic, employers have faced challenging times trying to keep up with the safety of their employees, as well as OSHA regulations. With business being closed, travel restrictions, and shelter-in-place requirements, people who normally provide training or audits, inspections, and other industrial hygiene services may be limited. Employee training may also be lacking during this time due to other restrictions.
The April 16, 2020 OSHA Enforcement Memo stated:
“For example, the American College of Occupational and Environmental Medicine issued a recommendation that occupational spirometry testing be suspended because of concerns about spreading droplets containing the COVID-19 virus during spirometry maneuvers. In addition, the Council for Accreditation in Occupational Hearing Conservation issued a recommendation that audiometric evaluations be suspended until normal operations have resumed, in order to minimize the risk to healthcare workers and conserve personal protective equipment. “
What Happens if You’re Inspected?
If an OSHA official were to show up at your site, don’t panic. During their inspection, the workplace will be assessed for efforts to comply with standards that require annual or recurring audits, training, or other assessments. The compliance officer will determine whether the employer has made good faith efforts to be in compliance with applicable OSHA standards. If there are situations where compliance simply was not possible, it is the employer’s responsibility to ensure that employees were not exposed to hazards where they were not properly trained. Another element of the evaluation will be looking to see if all options were exhausted to try and comply with applicable standards. Was virtual training an option? Were engineering or administrative controls used? If training was scheduled, was it rescheduled?
The memo also stated:
“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. “
When Could You be Cited?
If an employer cannot show any efforts to have complied with the standard, a citation may be issued. However, if the effort was made to comply, the area officer will take the detailed notes and documentation of all efforts made into consideration during their decision to cite a violation.
Are Corrective Actions Needed?
The answer is yes! Once normal activities resume, OSHA will conduct a monitoring inspection from a random sample where violations may have been noted but not actually cited. OSHA states, “To accommodate this, CSHOs shall enter the code N-10-ABATEMENT DEFERRED in the OSHA Information System to denote such cases. Additional guidance on monitoring will be provided at a later date.” This is in effect immediately and will be until further notice.