It is not unusual for OSHA to request “enhanced abatements” when resolving citations. Enhanced abatement is when an employer agrees to perform certain abatement actions beyond the recognized hazard in the specifically cited standard. For example, if an employer receives a machine guarding citation for failure to guard machine A, OSHA may request the employer perform a corporate-wide guarding audit for all equipment in addition to guarding machine A. Other common examples of enhanced abatement include committing to performing future employee training at all facilities in applicable areas or agreeing to conduct safety and health audits with OSHA’s consultation branch or an independent safety and health firm.
Given the current uncertainty of how COVID-19 will affect the workforce, employers need to give special consideration before agreeing to any enhanced abatements that will require actions taken in the future. Using the example of providing future employee training above, if COVID-19 results in extended and prolonged employee absences, it could affect the employer’s ability to conduct such training. Thus, it may be prudent to negotiate with OSHA an “emergency” type clause that would take this potential into account and automatically extend abatement deadlines under certain conditions. Of course, the need for such a clause and the necessary language will depend on the specifically enhanced abatement requested.