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PT Notes

Discretion in Enforcement of OSHA Standards During the Pandemic

PT Notes is a series of topical technical notes on process safety provided periodically by Primatech for your benefit. Please feel free to provide feedback.

In an April 16, 2020 memorandum, OSHA recognized that some employers may face difficulties complying with OSHA standards during the pandemic because of business closures, restrictions on travel, limitations on group sizes, facility visitor prohibitions, and stay-at-home or shelter-in-place requirements. These factors may limit the availability of employees, consultants, or contractors who normally provide training, auditing, equipment inspections, testing, and other essential services.

The memo instructs Compliance Safety and Health Officers (CSHOs) to evaluate whether an employer has 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 for which they were not prepared or trained.

During the course of an inspection, OSHA will assess an employer's efforts to comply with standards that require annual or recurring audits, reviews, training, or assessments.

As part of assessing whether an employer engaged in good faith compliance efforts, CSHOs will evaluate whether the employer thoroughly explored all options to comply with applicable standards, for example, by using virtual training or remote communication strategies. Process safety training courses are available for delivery online and process safety studies, such as process hazard analysis (PHA), can be facilitated remotely.

In assessing an employer’s good faith efforts, CSHOs will 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 activity as soon as possible.

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.

OSHA provided the example of a PHA revlidation that was to be facilitated by a consultant, but because of travel restrictions and shelter-in-place orders, the consultant was unable to travel to the employer's location. OSHA will not cite the employer for failing to meet the five-year requirement for conducting a PHA revalidation provided the employer considered alternative options for conducting the study, or, if that was not possible, implemented interim alternative protective measures and shows a good faith effort to reschedule the study as soon as the travel restrictions and shelter-in-place orders are lifted.

Where the employer cannot demonstrate any efforts to comply, a citation may be issued under existing enforcement policy. However, where an employer has made attempts to comply in good faith, OSHA will take such efforts into consideration in determining whether to cite a violation. Employers would be wise to document their good faith efforts so that written evidence is available to CSHOs.

In order to ensure that corrective actions have been taken once normal activities resume, OSHA intends to develop a program to conduct monitoring inspections from a randomized sampling of cases where violations were noted but not cited.

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