OSHA Instructs Discretion in Issuing Citations During COVID-19 Pandemic (Coronavirus and the Law)


portrait of Stephen A. Burt Steve Burt
Healthcare Compliance Resources

In light of the COVID-19 pandemic, OSHA understands some employers may face difficulties complying with the multitude of OSHA standards.

OSHA Memorandum

In the April 16, 2020 Enforcement Memorandum, OSHA acknowledges the widespread business closures, restrictions on travel, limitations on group sizes, facility visitor prohibitions, and stay-at-home or shelter-in-place requirements some employers may face.


In the memo, “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic”, Regional Administrators and State Plan Designees (like Virginia and North Carolina) are to direct their OSHA Area Offices and Compliance Safety and Health Officers (CSHOs) to use discretion during inspections. They are instructed to consider an employer’s good faith efforts to comply with safety standards that require annual or recurring audits, reviews, training, or assessments.

Training and Evaluations

As the memo acknowledges, due to the ongoing health emergency, the availability of employees, consultants, or contractors who normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services may be limited.
OSHA also recognizes business closures and other restrictions and limitations may prevent employee training even when trainers are available. In other situations, access to medical testing facilities for audiometric evaluations and spirometry may be limited or suspended.

Good Faith Efforts

In assessing an employer’s good faith efforts, the memo advises CSHOs to examine if the employer thoroughly explored all options to comply with the applicable standard(s), such as using virtual training or remote communications. These efforts also include considering interim alternative methods 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.

If the employer can’t demonstrate any efforts to comply, CSHOs should look to see if the employer ensured employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained.

If violations are found, a citation may be issued as appropriate under existing enforcement policy. If enforcement discretion is warranted, Area Offices will ensure that sufficient documentation is provided in the case file to support the decision. Documentation includes notes on the efforts the employer made to comply or letters or other documentation showing that providers of consulting and training had closed.

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.

Effective Date

The April 16 memo is effective immediately and will remain in effect until further notice.

OSHA stated it will develop a program to conduct monitoring inspections from a randomized sampling of cases where violations were noted but not cited under this policy, and that additional guidance on monitoring will be provided at a later date.

In order to ensure that corrective actions have been taken once normal activities resume, CSHOs have been directed to code such cases for future review. OSHA noted this guidance is due to the unique public health crisis related to COVID-19 and is time-limited.

If you have any questions regarding OSHA enforcement activity during the COVID-19 pandemic, attorneys on the Woods Rogers Labor & Employment team and their partners at Woods Rogers Consulting are available to assist.

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