OSHA Proposes Clarification of Requirements for Personal Protective Equipment and Training

On August 19, 2008, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) published in the Federal Register a proposed rule to clarify the individualized nature of the requirement to provide personal protective equipment (PPE) and training for workers. This proposal affects PPE and training in general industry, maritime, and construction. The public comment period on the proposed regulation will be open for 30 days.

Under OSHA’s longstanding egregious policy first implemented in 1990, OSHA may seek a separate penalty for each discrete violation in cases where an employer has flagrantly disregarded its legal responsibilities for the safety and health of workers. The proposal addresses several recent legal decisions suggesting that differences in wording among OSHA standards may affect OSHA’s ability to issue separate penalties for each discrete violation in certain circumstances.

The proposed revisions primarily affect PPE and training related to health hazards, such as asbestos and lead. Specific changes within the proposed rule include the following: (1) new paragraphs in the introductory provisions of OSHA’s standards that all PPE and training requirements impose a separate compliance duty to each covered employee, and that each employee not protected or trained may be considered a separate violation; and (2) revisions of the language of some existing respirator and training requirements.

The proposed changes will make no difference to employers’ legal obligations; however, they will ensure that OSHA has the necessary tools to assess an appropriately high penalty where warranted.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing a safe and healthy workplace for their employees. OSHA’s role is to promote the safety and health of America’s working men and women by setting and enforcing standards; providing training, outreach and education; establishing partnerships; and encouraging continual process improvement in workplace safety and health.