OSHA’s April 16, 2020 guidance memo from OSHA’s Directorate of Enforcement provides OSHA area offices with unusual discretion in citing employers who otherwise exercised “good-faith” in attempting to comply with OSHA’s various standards but failed due to circumstances related to the COVID-19 pandemic. The discretion provided to OSHA’s area offices by this guidance will only be for the duration of the COVID-19 pandemic. Hopefully, this guidance will provide some actual protection to employers who are being investigated for compliance failures tied to the pandemic, but it should be noted that the actual language of the guidance provides no guarantee of any such protection. In fact, the language of the guidance may serve as a potential trap for the employer who relies on its intention and not its actual language.
Typically, OSHA’s compliance officers operate under a “must-cite” mandate which provides the compliance officer no discretion in citing an employer where a violation has been identified, regardless of the good-faith of the employer. In lieu of this mandate, this new guidance directs OSHA Area Offices to exercise discretion in citing employers for violations where the employer can demonstrate it exercised good-faith but compliance was not possible due to conditions created by the pandemic. Notably, the guidance imposes few, if any, actual restraints on OSHA in citing an alleged violation. In addition, the language of the guidance is filled with subjective terms that create several legal pitfalls for the employer who relies on it to justify non-compliance during the pandemic. The guidance reads, in part, as follows:
Compliance Safety and Health Officers (CSHOs) should evaluate whether the employer made good faith efforts to comply with applicable OSHA standards and, in situations where compliance was not possible, to ensure that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained. As part of assessing whether an employer engaged in good faith compliance efforts, CSHOs should evaluate whether the employer thoroughly explored all options to comply with the applicable standard(s) (e.g., the use of virtual training or remote communication strategies). CSHOs should also consider any interim alternative protections implemented or provided to protect employees, such as engineering or administrative controls, and whether the employer took steps to reschedule the required annual activity as soon as possible….
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.
Per the guidance, the employer is required to demonstrate compliance was “impossible” (i.e., not merely “infeasible”) and that, in those instances , the employer nonetheless “ensured” its employees were not exposed to the related hazard through alternative means of abatement. In order to establish “good-faith,” the employer will need to convince OSHA that it “thoroughly” explored “all” options to comply with the standard. Even when the employer has satisfied all these prerequisites, the Area Office is only directed to give the good-faith efforts of the employer “strong consideration” in determining whether to cite the employer. Clearly, the subjective language used in this guidance should discourage employers from relying on the memo as providing a “good-faith” exception to compliance obligations during the pandemic.
Where the employer must rely on this guidance to avoid a citation, documentation will be key to establishing the employer made a good-faith effort to comply with the standard at issue, and/or made alternative arrangements to protect its employees from the related hazard. To the extent the employer believes compliance with a specific standard is not achievable due to conditions created by the COVID-19 pandemic, I suggest documenting the following eight steps:
- Identify the non-compliance.
- Detail the reason the compliance cannot be achieved.
- Explain how that reason is tied to the COVID-19 pandemic.
- Identify the alternative forms of abatement that were explored.
- Identify the alternative form of abatement that was selected and implemented.
- Explain why this form of abatement was selected.
- Calendar the date formal compliance will be achieved.
- Explain the why this date is “as soon as possible.”
Successfully completing these eight steps will not guarantee OSHA won’t cite the employer but it will improve the employer’s chances and help lay the foundation for a number of defenses where a citation is issued.