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Employers Could Qualify for OSHA Virus ‘Good Faith’ Exemption

April 17, 2020, 4:52 PM

Employers that can’t meet OSHA requirements for safety training and other regular reviews because of coronavirus issues may not be cited for the shortfalls if they’ve made a “good faith” effort to comply, a new directive said.

Travel restrictions and businesses closing could make it difficult for employers to meet a wide range of Occupational Safety and Health mandates, from breathing tests to re-certification of construction crane operators, the April 16 directive from OSHA’s construction and enforcement offices said.

The policy applies to all employers subject to OSHA inspections—those with 11 or more workers. It most directly affects companies with periodic testing requirements such as factories mandated to monitor workers for hearing loss or companies hiring consultants for such tasks as measuring airborne dust levels or conducting annual training. The exemption doesn’t apply to everyday safety concerns, such as requirements that workers at heights wear fall protection gear or covering moving machinery parts.

OSHA issued the directive after the American College of Occupational and Environmental Medicine and the Council for Accreditation in Occupational Hearing Conservation recommended members stop some worker tests because the evaluations could increase potential exposure to the coronavirus.

OSHA has offered good faith exemptions before. Usually, the exceptions are offered when new rules take effect and there are concerns equipment shortages or training backlogs could prevent all businesses from immediately complying.

Did You Try?

The new directive said that for an inspector to decide whether an employer has made a good faith effort, the compliance officer “should evaluate whether the employer thoroughly explored all options to comply with the applicable standard” such as using virtual training or teleconferencing.

Inspectors also should consider whether the employer implemented interim protections and took steps to reschedule the training or evaluations as soon as possible.

To make sure the training or evaluations take place after “normal business activities resume,” OSHA intends to conduct follow-up inspections at some of the companies granted an exemption to determine if the employer completed the delayed requirements.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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