Trump's New Executive Order Regarding Reopenings and OSHA Enforcement Discretion

On May 19, 2020, President Trump issued an Executive Order intended to help spark an economic resurgence by urging agencies to provide leniency toward businesses that are endeavoring to satisfy federal best practices to prevent the spread of COVID-19.

Background: This Order is in response to employers’ concerns as they endeavor to mitigate the risks associated with reopening. It directs agency heads, including the Department of Labor and the Occupational Safety and Health Administration (OSHA), as well as the Occupational Safety and Health Review Commission, to provide businesses the guidance they need to reopen, to recognize employers’ efforts to comply with regulations, and to implement “fair” enforcement and adjudication. To that end, agencies may “decline enforcement against persons and entities that have attempted in reasonable good faith to comply with applicable statutory and regulatory standards.”

Discretionary Leniency for Good-Faith Compliance Efforts: The Order encourages agencies to exercise their discretion to refrain from enforcement where there are good-faith compliance efforts. Although employers may anticipate some level of leniency from OSHA as they reopen their facilities after COVID-19 related shutdowns, they will still need to be able to demonstrate their good-faith compliance efforts. Accordingly, employers should document their compliance efforts in order to be considered for discretionary “good faith” leniency.

Not a Categorical Good-Faith Defense: Notwithstanding the Order, OSHA’s regulatory “general duty clause” is still in full force, which requires that “each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Hence, OSHA still has plenty of legal authority and discretion to bring enforcement actions where it sees fit. The challenge for employers will be to make sure that they are satisfying that good-faith standard; the challenge for OSHA will be to enforce in a manner so as to give businesses the confidence to reopen, but without shirking its responsibility regarding willful or grossly negligent violative conditions.