OSHA Clarifying Per-Employee Duty in Standards

OSHA today published changes it will make, pending comments submitted no later than Sept. 18, in its standards to explicitly state they apply on a per-employee basis. The changes are being made in some specific respirator and training requirements and do not reflect a new position for OSHA; they respond to Occupational Safety and Health Review Commission decisions that upheld or rejected per-employee citations and penalties, depending on the precise wording of the standard in question. Comments and requests for a hearing may be submitted via www.regulations.gov. (Cite docket number OSHA-2008-0031 or the regulatory information number 1290-AA23.)

"The agency intends the proposed new language to clearly convey that the respirator provisions in all OSHA standards impose a duty to provide an appropriate respirator to each individual employee that requires respiratory protection," today's proposal states. "The failure to provide an appropriate respirator to each such employee may expose the employer to per-employee citations."

OSHA said its Advisory Committee on Construction Safety and Health supports the changes proposed for the construction standards: 1926.1101(k)(9)(i) will state, "[t]he employer shall train each employee who is likely to be exposed in excess of a PEL, and each employee who performs Class I through IV asbestos operations, in accordance with the requirements of this section" instead of the current language, "institute a training program for all employees who are likely to be exposed in excess of a PEL and for all employees who perform Class I through IV asbestos operations, and shall ensure their participation in the program." which OSHRC decided was not sufficiently explicit on employers' duty to train each employee.

Today's proposal (http://edocket.access.gpo.gov/2008/E8-18991.htm) discusses several key cases in the history of per-employee citation, such as the Ho decision, a case that involved 11 untrained workers directed to remove asbestos without respiratory protection from a Houston building undergoing demolition. OSHRC vacated all but one of the respiratory and one of the training violations, holding that "the plain language of the standard addresses employees in the aggregate, not individually." This was affirmed, although on different grounds, by the 5th U.S. Circuit Court of Appeals. Also discussed is Secretary of Labor v. Manganas Painting Co., (Rev. Comm'n 2007), where OSHRC found the initial respiratory protection paragraph of the 1993 construction lead standard (1926.62(f)(1)) authorizes per-employee citations.

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