OSHA Relaxing Enforcement Policy on Recurring Compliance Testing Requirements

In response to employers having difficulty meeting their compliance obligations due to the COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) released a new interim guidance on enforcement of certain OSHA regulations during the pandemic. The guidance document addresses requirements that entail annual testing, inspection, training and auditing. Employers not able to meet these requirements will be granted relief as long as the company makes good faith efforts to stay in compliance.

OSHA recognizes 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. 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.

Inspectors are instructed to assess an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training or assessments. OSHA inspectors are being asked to 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.”

Specifically, the inspector will evaluate if a company:

• 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

• Rescheduled required annual activity as soon as possible

Under this guidance, two scenarios are considered. The first scenario involves the continued operation of the printing facility during this pandemic. In this instance, OSHA will evaluate whether the employer explored other options to comply with the applicable standards (e.g., by remote training, virtual inspections, etc.), and will look for any efforts to implement interim alternative protections. OSHA will be looking for documentation and other evidence of the employer’s efforts to comply or because compliance would have created an unreasonable risk of exposure to employees. For example, many employers use mobile testing labs for annual audiograms or hearing tests. Conducting such testing requires employees to be in close contact with the person conducting the test, which violates the social distancing protocols. In addition, the testing firm may not want to conduct the tests for the same reason.

Acceptable documentation may include internal communications for training or a similar activity, contracts or invoices showing that the training or auditing service had been scheduled before the COVID-19 outbreak, and communications with the providers about the cancellation because of the pandemic.

If, however, the printing operation was closed due to the COVID-19 Pandemic, OSHA will expect to see that the employer demonstrated further good faith attempts to return to compliance as soon as possible following the re-opening of the workplace, renewed availability of third-party services, and/or the relaxing of the various social distancing related policies. This assumes that any internal compliance activities will be scheduled to be completed as conditions and available personnel permit it to be accomplished and if outside services are needed, an effort will be made to get them scheduled for a future date.

If an employer cannot demonstrate any efforts to comply, OSHA may issue a citation. 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.

Examples of situations where enforcement discretion should be considered include annual audiograms, periodic inspection of Lockout/Tagout programs, annual hazardous waste operations training, annual respirator fit testing and training, and periodic medical evaluation for respirator use. While not an annual requirement, an activity that would be included is the three-year powered industrial truck training requirement if the anniversary fell during the pandemic.

This OSHA guidance took effect on April 16, 2020 and remain in effect until further notice. It is intended to be time-limited to the current public health crisis.

For more information please contact the Government Affairs Department at govtaffairs@sgia.org.