OSHA Law Blog : Occupational Safety Lawyer & Attorney : Jackson Lewis Law Firm : Health, OSHA Compliance

California employers must now conduct an assessment of their workplaces for hazards that may require the use of certain personal protective equipment (PPE) and train employees in the use, care, and limitations of required PPE. The PPE included in the scope of the new rules are eye and face protection, foot protection, head protection, and hand protection. The new standard became effective on April 13, 2011.

The rules were originally proposed in 2010 as a result of an audit conducted by the federal Occupational Safety and Health Administration (OSHA) on the effectiveness of California OSHA’s (CalOSHA) safety and health enforcement and regulatory programs. In preparing responses to the federal audit, CalOSHA realized that it had not adopted equivalent rules to the federal requirements dealing with PPE hazard assessment and training. As a result, it proposed these new requirements to ensure equivalency with federal OSHA in this area – a requirement to operate a “State-plan State” under the Occupational Safety and Health Act of 1970.

Under the new rules, California employers must now assess their workplaces to determine if hazards are present, or are likely to be present, which necessitate the use of PPE, and if such hazards are present:

• select and have employees use the needed PPE;
• communicate the selection decisions to affected employees; and
• select the PPE that properly fits affected employees.

Furthermore, employers must document that the hazard assessment has been performed through a written certification that identifies the workplace evaluated, the person certifying that the evaluation has been performed, and the dates of the hazard assessment.

The rules also require that the employer train each employee who is required to use PPE on the following:

• when PPE is necessary,
• what PPE is necessary;
• how to properly wear and adjust the PPE;
• the limitations of the PPE; and
• the proper care, maintenance, useful life and disposal of the PPE.

Each employee must demonstrate an understanding of this information and will need to be retrained where changes in the workplace render previous training obsolete, changes in the types of PPE to be used render previous training obsolete, or inadequacies in an affected employee’s knowledge or use of assigned PPE indicate that the employee does not have the required competence. As with the hazard assessment, employers are required to certify in writing that their employees have been trained.

California employers must already assess their worksites through the state’s Injury and Illness Prevention Program rule, so this added requirement may be easily incorporated into existing safety and health systems. Nevertheless, all California employers are advised to review the new requirements and their own PPE programs to ensure they are fully compliant.

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OSHA has established new procedures for enforcing its personal protective equipment (PPE) standards in general industry.  The compliance directive "provides general guidance for the enforcement of standards applicable to personal protective equipment (PPE) in general industry, including guidance on payment for PPE."  The new procedures became effective on February 10, 2011.

The directive provides useful information to employers to help them understand how OSHA's employer payment for PPE final rule should be implemented.  That rule requires that employers pay for most PPE, but carves out certain exceptions where employer payment is not required.  Since the rule came into effect, many employers have struggled to understand exactly how these exceptions can be applied to their worksites.  OSHA's directive may help employers in this area.

The directive gives examples of PPE that employers must provide to their employees, provides examples of exempted PPE, and lists a series of FAQs to assist employers with compliance.  It also provides citation scenarios "of potential workplace conditions that would lead to a citation."

All employers that are required to provide PPE to employees should review the directive carefully to ensure compliance. 

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OSHA has issued a proposed interpretation of the terms "feasible administrative or engineering controls" as they are used in OSHA's general industry and construction occupational noise standards.  Under these standards, employers must first implement feasible administrative or engineering controls before utilizing personal protective equipment (PPE) to reduce employee exposures.  According to OSHA, the proposed interpretation will "clarify that feasible as used in the standard has its ordinary meaning of capable of being done."  This proposed interpretation will have a major impact on all general industry and construction employers, who are encouraged to submit comments to the Agency on the proposed interpretation.  Comments are due by December 20, 2010.

The proposed interpretation would alter existing Agency enforcement policy for determining when an employer may utilize PPE to protect employees from noise exposures, as opposed to relying on engineering and administrative controls.  Existing policy provides that employers will be cited for not implementing certain engineering or administrative controls when hearing protectors are ineffective or the cost of such controls are actually less than the cost of implementing a full hearing conservation program.  OSHA is proposing to eliminate this framework and consider engineering and administrative controls to be feasible so long as they will "not threaten the employer's ability to remain in business or if the threat to viability results from the employer's having failed to keep up with industry safety and health standards."

Aside from the importance of the issue to many stakeholders, by issuing the proposed interpretation in the Federal Register, OSHA is further elevating its status.  It is incumbent upon all stakeholders to comment on this proposed interpretation so that OSHA has the best information available to it when determining how to approach this important issue.   

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In a recently issued memorandum to Regional Administrators and State Plan Designees, OSHA has clarified its policy for citing the general industry personal protective equipment (PPE) standard, 29 CFR 1910.132(a), for failure to provide and use flame resistant clothing (FRC) in oil and gas well drilling, servicing, and production-related operations.  In the March 19 memorandum, OSHA provides guidance to its compliance officers (CSHOs) on when employers must provide and ensure the use of FRC and, thus, when citations under 29 CFR 1910.132(a) may be issued.

The memorandum sets the following specific citation guidance:

• In drilling operations, FRC is usually not needed during initial rig up and normal drilling operations prior to reaching active hydrocarbon zones, unless other activities warrant their use.  Once active gas or hydrocarbon zones are reached, appropriate FRC must be worn by exposed employees working on the well site prior to drilling into identified gas or hydrocarbon zones.  FRC should also be worn when there is a history of fluid or gas kicks from underground producing zones.  And, once FRC is provided per these circumstances, employees should wear the FRC until the final casing is cemented and the well is effectively closed.
   
• In well servicing operations, CSHOs are tasked with determining whether FRC is provided and worn during well servicing or workover operations, such as pulling wet string tubing, snubbing tubing, swabbing operations, etc.
   
• In production-related operations, OSHA also concludes that the potential for flash fire exists, and advises CSHOs to specifically examine certain operations for citation, such as equipment openings, gauging, transfer of hydrocarbons, and maintenance operations on production equipment.

If citations are warranted, CSHOs are provided the following sample language to use:  "The employer failed to provide and ensure the use of flame-retardant treated clothing (FRC) necessary to protect employees from burns due to potential flash fires."

OSHA's recent memorandum is important for employers in oil and gas well drilling, servicing, and production-related operations and they should thoroughly review it to ensure that their current practices are fully compliant with OSHA's expectations. 

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In a move widely applauded by both employer and employee groups, OSHA has updated its general industry and maritime personal protective equipment (PPE) standards to specifically allow the use of certain PPE designed according to current national consensus standards. OSHA’s final rule, “Updating OSHA Standards Based on National Consensus Standards; Personal Protective Equipment,” will bring greater certainty to compliance with OSHA’s PPE standards for head, eye, and foot protection and further encourage use of the latest protective technology. This final rule is the third in a series of updates OSHA is making to its rules to reflect the latest versions of national consensus standards.

With this final rule, employers are expressly allowed to use head, eye, and foot protection built in accordance with these recent national consensus standards:
 

• ANSI Z89.1-2003 for head protection;
• ANSI Z87.1-2003 for eye protection; and
• ASTM F-2412-2005 and ASTM F-2413-2005 for foot protection.

Before promulgation of this final rule, OSHA’s PPE standards required employers to provide head, eye, and foot protection built in accordance with outdated national consensus standards (e.g., the 1986 ANSI standard for head protection). This caused confusion for employers and employees as the national consensus standards were continually updated and PPE available for purchase no longer reflected the outdated design specifications. Employers who provided the latest PPE to their employees could be subject to a de minimis notice by OSHA – a technical violation of OSHA’s standards not adversely impacting the safety and health of employees. While employers are still able to use certain older equipment, as a result of this final rule, employers now can use the latest technology in head, eye, and foot protection, certain in the knowledge that they will be in compliance with OSHA’s standards.

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With summer weather starting to sweep across the country, OSHA has issued guidance on protecting workers from the adverse health effects of heat at work. Employers should take note as OSHA has called excessive heat a recognized hazard and has cited employers under the General Duty Clause of the Occupational Safety and Health Act of 1970 for failing to take feasible steps to address workplace exposures to heat.

The new guidance lists the following factors that can lead to heat stress:
 

• High temperature and humidity;
• Direct sun or heat;
• Limited air movement;
• Physical exertion;
• Poor physical condition;
• Some medicines;
• Inadequate tolerance for hot workplaces; and
• Insufficient water intake.

To prevent the adverse effects of heat – heat stroke, heat exhaustion, heat cramps, and heat rashes – OSHA recommends that employers consider a variety of administrative and work practice controls. These include:
 

• Acclimating workers to heat by exposing them to work in a hot environment for progressively longer periods;
• Providing cool liquids to employees (not including caffeinated beverages) and encouraging them to drink small amounts frequently (e.g., one cup every 20 minutes);
• Reducing physical demands, such as excessive lifting, climbing, or digging and, if necessary, use relief workers or assign extra workers to minimize overexertion;
• Providing recovery areas such as air-conditioned enclosures;
• Providing intermittent rest breaks;
• Rescheduling hot jobs to the cooler part of the day; and
• Monitoring workers who are at risk of heat stress by checking their heart rate and oral temperature.

OSHA also recommends employers consider certain personal protective equipment (PPE) to address heat hazards, such as loose-fitting reflective clothing, wetted clothing, and water-cooled garments. 

With its new guidance, OSHA is putting employers on notice that they need to take heat-related illness seriously. Employers are encouraged to do so, particularly as we get deeper and deeper into the summer months.

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