Safe Solutions

Eliminating ambiguity

The Occupational Safety and Health Administration (OSHA) is seeking to tighten regulations involving workplace exposures where employers are required to provide personal protective equipment (PPE) and training to their employees. In a recent notice of proposed rulemaking, OSHA aims to clarify the remedies for violations of its PPE and training standards affecting general industry and construction.

The proposed rule amends a number of respiratory protection and training regulations; its intent is to treat each failure by an employer to provide training or a respirator to an employee as a separate, distinct OSHA violation with its own penalty.

Open to interpretation

The language in most OSHA regulations requiring training or respirator use varies and has been open to diverse interpretations by the Occupational Safety and Health Review Commission (OSHRC), the agency that initially settles disputes between OSHA and employers.

For example, OSHA's construction standard regulating asbestos states: "For employees who use respirators required by this section, the employer must provide respirators … ." Other regulations that mandate training contain wording such as "employees shall be trained" or "the employer must provide employees with information and training."

OSHA argues its respirator and training provisions apply to each employee regardless of whether a provision's wording expressly states "each employee."

A civil penalty may be assessed for each violation of a workplace standard. But controversy arises regarding what constitutes a violation when a standard may not clearly set out a duty to protect "each employee" but rather requires a broader single action. Installing guardrails at an area where employees are exposed to falls, for example, is a single action that would protect all employees.

OSHRC stated in one decision that respirator provisions are intrinsically employee-specific because the respirator standard requires protection for employees as individuals. Another ruling cites the plain language in the standard that addresses employees as a group rather than as individuals.

According to OSHA, this inconsistency means its ability to enforce respiratory standard violations by per-employee citations hinges on OSHRC's interpretation of the standard.

In proposing amendments to the regulatory language, OSHA says that despite the different wording in its various training and respirator provisions, separate penalties should be assessed for each unprotected or untrained employee and the presence or absence of the words "each employee" in a regulation does not alter the nature of an employer's obligation to comply with requirements with regard to each employee.

Initial comments regarding OSHA's proposed rule have sought to limit per-employee penalties to flagrant violations, thereby adding an element of discretion on OSHA's part to apply the rule. Concerns have been raised that assessing penalties under the proposed rule could cause economic hardship for an employer who, for example, violates a minor training provision that affects a substantial number of employees and, therefore, yields significant penalty amounts.

Taking action

The final rule likely will not be issued until early 2009, but you should take action regardless of the proposed amendments' ultimate outcome.

OSHA's proposed rule underlines the significance of comprehensive training for all employees exposed to workplace hazards, as well as the importance of keeping complete, accurate records of the date, content, attendees and facilitator of all training programs. Additionally, the proposed new rule focuses on one of the more complicated areas of OSHA jurisdiction—respiratory protection provisions—and it is crucial you understand the nature of the hazards that may require employee respirator use, OSHA requirements related to respirator use and the respiratory equipment available to protect workers exposed to airborne hazards.

Harry Dietz is NRCA's director of risk management.


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