December 15, 2008 The Pump Handle 5Comment

OSHA issued a good final rule on Friday, Dec 12 designed to clarify employers’ duty to provide personal protective equipment (PPE) and train employees on the proper use of the PPE (link here).  It will take effect on January 12, 2009.  The rule was necessary because of some down-right awful and/or inconsistent OSH Review Commission decisions, and an adverse majority ruling by the U.S. Court of Appeals for the Fifth Circuit.  It was one particular outrageous case of an employer’s disregard for workers’ health that was the straw that finally broke OSHA’s back.  More on that below; the bottom line of this OSHA final rule is:

“…to make it unmistakably clear that each covered employee is required to receive PPE and training, and that each instance when an employee subject to a PPE or training requirement does not receive the required PPE or training may be considered a separate violation subject to a separate penalty.”  (73 Fed Reg 75569)

OSHA explains in the preamble to the rule (at 75571) why the agency had to buckle down and issue this clarification. 

“Erik Ho, a Texas businessman, was cited for multiple violations of the construction asbestos standard’s respirator and training provisions. Ho’s conduct was particularly flagrant. He hired eleven undocumented Mexican employees to remove asbestos from a vacant building without providing any of them with appropriate protective equipment, including respirators, and without training them on the hazards of asbestos.  Ho persisted in exposing the unprotected, untrained employees to asbestos even after a city building inspector shut down the worksite, at which point Ho began operating secretly at night behind locked gates.”

“The citations charged Ho with separate violations for each of the eleven employees not provided a respirator. …Ho was also charged with separate violations for each of the eleven employees not trained…    …A divided OSH Review Commission vacated all but one of the respirator and one of the training violations. According to the majority, the requirement to provide respirators and ensure their use involved the single act of providing respirators to the employees in the group performing the specified asbestos work. 17 O.S.H. Cas. (BNA) at 1372. Thus, the majority concluded, ‘the plain language of the standard addresses employees in the aggregate, not individually.’  The majority reached this conclusion despite acknowledging that various subparagraphs immediately following the cited provision required particularly employee-specific actions, such as fit-testing individual employees.   The majority adopted an equally narrow interpretation of the [training] requirement.”

“…One Commissioner dissented, arguing that the plain wording of the respirator and training provisions authorizes OSHA to treat as a discrete violation each employee not provided and required to use an appropriate respirator, and each employee not trained in asbestos hazards. (Thomasina Rodgers, Comm’r dissenting).”

The AFL-CIO’s H&S department was engaged fully in this rulemaking and supported it.   In their written comments to OSHA, they said:

“We support OSHA’s proposed rule.  The proposal, when modified in accordance with our suggested language changes…will removew any doubt that employers are obligated to provide required PPE and training to each worker and that employers who fail to do so for each individual employee are subject to per-instance citations for each employee unprotected.”

Whomever was calling the shots at OSHA and SOL on this one deserves credit.  Thanks for doing the right thing to ensure this fundamental protection for workers.

Employers or other interested parties who believe they will be adversely affected by this rule have 60 days to “file a petition challenging the validity of the standard with the U.S. court of appeals…” as provided by Section 6(f) of the OSH Act.  No matter how much sense this rule makes, I’m sure there is some DC law firm and/or lobbying group looking for a client(s) who wants to challenge it.   I hope I’m wrong.

5 thoughts on “Good OSHA Rule on Personal Protective Equipment

  1. Yeah, you’d think this issue would have been settled in the U.S. a long time ago. Thanks for the link to the UK site.

  2. Random question: Has there ever been any clarification on how this rule applies to temporary employment agencies? Manpower might have something to say about this if it does;)

  3. BrettB make a good point and one that comes up often and is not as clearly defined here. Common sense might prevail here in that any temp agency worth their salt would seek to keep pace with workplace changes and seek to improve the level of “service” to their customers.

    In an ideal world that might mean categorizing potential risks associated with the assignments and communicating with employers the need for PPE as defined by this particular new standard. This “rent a human” service should not be exploitative because it serves a legitimate need for both worker and employer – but then nothing is ever ideal.

    So, instead of simply being “meat markets” for expendable labor as they have been for years, employers should bear the responsibility of ensuring that adequate PPE is provided to temp workers and not simply lay it off on the temp agency. Agencies might be complicit in any violation if they specifically promote workers as being “trained” or “equipped” if they are not.

    As for issuing one blanket violation to cover many individual violations – that would be fundamentally wrong. Simply put, each human life here is affected – these are people not cattle. If you were to commit individual acts of fraud you would be charged for EACH occurrence and/or each separate victim (in this case each individual worker) in court. Why should this violation of law be handled any different?

  4. OSHA updating Personal Protective Equipment Standards Based on National Consensus Standards

    ACTION: Final rule for 29 CFR Parts 1910, 1915, 1917, and 1918

    BACKGROUND: While OSHA has updated some of its Section 6(a) standards through notice and comment rulemaking, the vast majority have not been updated since they were originally adopted. Some of the consensus standards “incorporated by reference” were issued over 60 years ago. Most of the referenced consensus documents have been either superseded by later versions or withdrawn by the issuing Standards Development Organization (SDO). Many are no longer in print or available to the public through the issuing SDO. These outdated standards do not reflect advances in technologies that have changed workplace safety over the last 30 years. The OSHA versions also have not been updated to address new equipment and machinery that have become available since they were originally promulgated.

    SUMMARY: OSHA is issuing this final rule to revise the personal protective equipment (PPE) sections of its general industry, shipyard employment, longshoring, and marine terminals standards regarding requirements for eye- and face-protective devices, head protection, and foot protection. OSHA is updating the references in its regulations to recognize more recent editions of the applicable national consensus standards, and is deleting editions of the national consensus standards that PPE must meet if purchased before a specified date. In addition, OSHA is amending its provision that requires safety shoes to comply with a specific American National Standards Institute (ANSI) standard, and a provision that requires filter lenses and plates in eye-protective equipment to meet a test for transmission of radiant energy specified by another ANSI standard. In amending these paragraphs, OSHA will require this safety equipment to comply with the applicable PPE design provisions. These revisions are a continuation of OSHA’s effort to update or remove references to specific consensus and industry standards located throughout its standards.

    DATES: This final rule will become effective on October 9, 2009.

    FEDERAL REGISTER RULE Vol. 74, No. 173 September 9, 2009 pp. 46350-46361 sourced from http:/

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