NCDOL Deputy Commissioner Clarifies Compliance Expectations During Pandemic

The Occupational Safety and Health Administration (OSHA) has issued temporary enforcement guidance in response to workplace situations affected by pandemic. An April 16, 2020 memorandum from Patrick Kapust, Acting Director of enforcement programs addressed enforcement discretion when considering an employer's good faith efforts during the COVID-19. Due to limited availability of employees, consultants, or contractors who normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services, employers may face difficulties complying with OSHA standards. In some cases, even if the trainers are available, business closures or restrictions may preclude employee participation or access to medical testing facilities may be suspended. For example, the Council for Accreditation in Occupational Hearing Conservation (CAOHC) has recommended that audiometric evaluations be suspended until normal operations have resumed to minimize exposure risk and conserve personal protective equipment (PPE).

On April 21, 2020, Scott Mabry, Assistant Deputy Commissioner, North Carolina Department of Labor (NCDOL), Occupational Safety and Health (OSH) Division, issued a memorandum following the OSHA April 16 memo to communicate that North Carolina adopts the temporary OSHA enforcement policy and to clarify that discretionary enforcement " is contingent upon evidence that the employer has made good-faith efforts to comply with annual and other recurring requirements of an OSHA standard and has a contingency plan in place to fulfill these requirements when business and the availability of services have resumed. Where the employer cannot demonstrate any efforts to comply or where the employer failed to meet the initial requirements of a standard ( e.g., initial training, baseline audiogram, initial monitoring, etc.), a citation may be issued as appropriate under existing enforcement policy."

On August 5, 2020, Preston Howard, President, North Carolina Manufacturers Alliance (NCMA) asked Kevin Beauregard, Deputy Commissioner, NCDOL OSH Division, for guidance on compliance with the annual hearing test evaluations that are required for many manufacturing sites in North Carolina in light of the CAOHC recommendations.  Deputy Commissioner Beauregard responded that NC OSH staff has discretion, based on their evaluation of an employer's efforts to provide a safe and healthful workplace. He stated, "As long as an employer is making concerted efforts to ensure that their employees are being provided a safe and healthful workplace and they are providing necessary PPE, such as hearing protection, then there would be allowances regarding the delay of annual occupational medical testing.  Employers should monitor the situation closely and when testing can be completed by a provider in a safe manner, it should be resumed."