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.

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