OSHA issued a notice to its field offices on April 16, 2020 describing their enforcement policy during the COVID-19 crisis (Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic). In addition to OSHA’s health and safety standards, this notice applies to the Process Safety Management (PSM) Standard as well (29 CFR 1910.119). This guidance indicates that OSHA is willing to be more flexible about regulatory deadlines during the health crisis, but expects facilities covered by their standards to explore alternative means for achieving compliance. This may include the possible use of virtual training or remote communication strategies as part of the alternative means they expect.
The OSHA notice states:
“During the course of an inspection, OSHA Area Offices will assess an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training, or assessments (see Annex below for some examples). Compliance Safety and Health Officers (CSHOs) should 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. As part of assessing whether an employer engaged in good faith compliance efforts, CSHOs should evaluate whether the employer thoroughly explored all options to comply with the applicable standard(s) (e.g., the use of virtual training or remote communication strategies). CSHOs should 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 annual activity as soon as possible.”
The notice goes on to offer an example of a PSM deadline and how they might be flexible on compliance with that deadline:
“An employer contracts with a consultant to conduct process hazard analysis (PHA) revalidations. A PHA revalidation for the employer’s ammonia refrigeration process was due to be completed by April 1, 2020, but because of travel restrictions and shelter-in-place orders, the consultant was unable to fly to the employer’s location. OSHA will not cite the employer for failing to meet the three-year requirement for conducting a PHA revalidation, provided the employer considered alternative options for compliance, implemented interim alternative protective measures, where possible, and shows a good faith effort to reschedule the PHA revalidation as soon as the travel restrictions and shelter-in-place orders are lifted.”
This indicates that OSHA will not cite the facility for missing the deadline if:
a. The facility explored alternative means of completing the PHA by the deadline, and
b. Implemented interim alternative protective measures, where needed, to protect their employees against the hazards of the PSM covered chemical, which is ammonia in this case, and
c. The facility shows a good faith effort to reschedule the PHA revalidation as soon as the travel restrictions and shelter-in-place orders are lifted, unless they were able to complete the PHA using alternative means while the restrictions are still in place.
Performing many PSM required activities can be successfully accomplished remotely. Online training via digital conferencing services and other remote means has been an increasingly common practice in recent years. PHAs have successfully been performed via these tools. The availability of reliable Internet based methods of teleconferencing that include audio, video, and screen sharing capabilities has made this easier. Adapting these methods to other PSM activities that have traditionally been conducted face-to-face, e.g., audits is relatively straightforward with some additional preparation.
PSM covered facilities should not consider this guidance as a blanket waiver of compliance requirements during the crisis. The guidance also directs OSHA inspectors to document how facilities have made attempts to reach compliance, and also directs that additional inspections be conducted after the health crisis has abated for those facilities where violations were noted but not cited.
Although the OSHA notice did not explicitly contain any statement about releases, events or incidents during the COVID-19 crisis, it is not likely that OSHA will overlook or tolerate any PSM incidents during this period, particularly where good faith efforts were not made to achieve compliance.
In summary, some flexibility in regulatory deadlines will be shown by OSHA if good faith efforts are made to achieve compliance, such as using remote/virtual means where they are appropriate. However, the abeyance of other aspects of a PSM program without justification will not likely be acceptable to OSHA. Any delays must be convincingly shown to have been caused by the inability to find reasonable alternatives during the COVID-19 working situations. Companies are urged to address all elements of compliance and to determine if any activities or deadlines will be compromised, and to make alternate plans accordingly.
