On Thursday of last week (4/16/2020), OSHA issued a Memo called “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic”
The memo is obviously intended to help clarify OSHA’s enforcement stance, but also to remind employers that they cannot put their safety programs on hold during the pandemic.
Here’s a quick summary of what you need to know:
- OSHA is not pausing enforcement during the pandemic. They will continue to conduct inspections, respond to employee complaints, etc. & will issue fines and penalties to companies “who fail to make good faith efforts” to comply with health and safety standards.
- While OSHA understands that the pandemic creates compliance challenges, they still expect employers to make “good faith efforts” to manage safety during the pandemic, especially standards with “annual” or recurring compliance requirements including audits, assessments, training, etc.
- In assessing “Good faith efforts,” inspectors will determine if “the employer thoroughly explored all options to comply with the applicable standards (g., the use of virtual training or remote communication strategies)” as well if the employer documented through notes, correspondence, etc. in situations where it was not possible to comply.
- Employers who get inspected & have violations, & cannot demonstrate evidence of “good faith efforts” to comply, will likely get fined and penalized.
- In cases where violations are found, but no citations are issued due to “good faith efforts,” OSHA will create a follow up monitoring program to randomly inspect these companies in the future to ensure that corrective actions are made. Although not stated in the memo, it’s assumed that companies who may not get fined initially could be fined later if they get a follow up inspection and previously identified violations aren’t corrected. OSHA also failed to clarify if these violations could result in “Repeat Violations” which currently have a maximum fine of $134,937 per violation.
Bottom line, companies who continue to operate as essential businesses during the pandemic cannot pause their safety programs, or risk stiff fines and penalties if they get inspected.
It’s important to highlight a key quote from the memo: when evaluating whether employers made “good faith efforts”, inspectors will evaluate if “the employer thoroughly explored all options to comply with the applicable standards (e.g., the use of virtual training or remote communication strategies)”
Berg Compliance Solutions is currently offering remote health and safety compliance services which meet OSHA’s “good faith efforts” standard, including their “virtual training or remote communication” recommendations.
These services include providing remote safety training, inspections, consultations, etc. and are all designed to help companies manage OSHA compliance and risk management during the COVID-19 pandemic, including helping companies develop and manage Infectious Disease Response Plans.
To Learn More About Our Remote OSHA Compliance Services
Call Us At 512-457-0374 or By CLICKING HERE
