the scales of justice

OSHA Letter May Be Big Help to Respirator Manufacturers

OSHA may have given respirator manufacturers an important assist with a letter dated Jan. 9 that was addressed to Daniel K. Shipp, president of the International Safety Equipment Association. Posted by OSHA Jan. 14 among a batch of letters of interpretation, this one was signed by Acting OSHA Assistant Secretary Thomas Stohler. ISEA specifically asked on May 19, 2008, for OSHA to take a position on whether the OSH Act and OSHA regulations preempt state court tort law claims, and Stohler answered yes. The question is whether his letter influences state judges to reject hundreds of thousands of state court claims, more than 325,000 asbestos and silica claims filed since 2000 against respirator manufacturers, according to ISEA. Shipp's letter requesting the opinion said MSA, Moldex-Metric, North, and Sperian Protection experienced a 500 percent increase in silica claims between 2002 and 2004.

Shipp said he understands the request was extensively discussed within the top ranks of OSHA. "We didn't go out and lobby hard for this," he said. "It is a big deal. It's something we've been working on a long time."

Asked how the letter will affect state court cases, he answered, "We don't know. You never know with something like this until a judge gets hold of it." But because OSHA is the federal agency with authority to regulate safety in the workplace, and its regulations require protective respirators to be NIOSH-certified, with no leeway for manufacturers to alter approved engineering specs, drawings, respirator markings, instruction manuals, packaging, or labels without NIOSH approval, then OSHA's word on the issue has weight.

“Respirator manufacturers have become innocent bystanders in asbestos and silica litigation, in which they are named among dozens of other companies in a search for a solvent defendant – not because they are at fault," Shipp said in a Jan. 15 news release announcing the letter. "The respirator manufacturers did not make the hazardous material in such lawsuits, but sought to protect workers from it."

Stohler's letter says, in part, "OSHA believes that, under certain circumstances, conflict preemption does preclude such [tort] claims. OSHA has promulgated an occupational safety and health standard requiring that '[r]espirators shall be provided by the employer when such equipment is necessary to protect the health of the employee.' The OSHA standard also specifies that the 'employer shall select a NIOSH-certified respirator. The respirator shall be used in compliance with the conditions of its certification.' Inconsistent state court decisions could cumulatively interfere with OSHA's federal regulatory scheme by disrupting the manufacture and ready supply of NIOSH-approved respirators.

"OSHA requires the use of NIOSH-approved respirators because of NIOSH's considerable expertise in balancing the competing concerns at issue in respirator design – for example, the need to filter out harmful particles while at the same time allowing a sufficient inflow of breathable air. OSHA relies on NIOSH's design criteria to ensure 'that respirators (are) reliable and that they perform in the manner and to the extent that the user and employer expect. If respirators fail to perform as expected, the user will be at greatly increased risk of suffering serious, sometimes fatal occupational disease or injury.'

"NIOSH has carefully calculated the risks and benefits associated with various design specifications and labeling of respirators, and it has deliberately, after extensive testing and research, created requirements that respirator manufacturers must follow if they are to sell respirators to employers. OSHA has, pursuant to its authority under the OSH Act, mandated that employers provide only NIOSH-approved respirators. To allow juries to enforce their own views of respirator design specifications and labeling for which NIOSH, as an expert agency, has already created standards and requirements, would directly conflict with OSHA's mandate that employers only use respirators designed and manufactured in accordance with NIOSH requirements," he wrote. "For these reasons, OSHA believes that the principles of conflict preemption preclude state courts from finding that OSHA-required, NIOSH-certified respirators are defective when such respirators comply with NIOSH requirements."

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