Client Alert - Employment Law Update
OSHA Proposes New Personal Protective Equipment (PPE) Rule to Expand Penalties
The Occupational Safety and Health Administration (OSHA) recently proposed a new rule that could greatly increase penalties that employers face under the agency's personal protective equipment (PPE) standards in areas including general industry and construction. The proposed rule would allow OSHA to assess separate penalties for PPE violations on a per-employee basis.
The Proposed Rule
In the proposed rule, OSHA seeks to clarify its ability to deem each failure to provide required PPE or training to separate employees a discrete violation, and assess fines accordingly. 73 Fed. Reg. 48335-50 (August 19, 2008). It would apply to OSHA's general industry, maritime, shipyard, longshoring, and construction PPE standards, and would provide as follows:
"Personal Protective Equipment. Standards in this part requiring the employer to provide personal protective equipment (PPE), including respirators, because of hazards to employees impose a separate compliance duty to each employee required to use PPE, and each failure to provide PPE to an employee may be considered a separate violation.
Training. Standards in this part requiring training on hazards and related matters, such as standards requiring that employees receive training or that the employer train employees, provide training to employees, or institute or implement a training program, impose a separate compliance duty to each employee covered by the requirement. The employer must train each affected employee in the manner required by the standard, and each failure to train an employee may be considered a separate violation."
The change is being implemented because of various court and administrative decisions, declining to impose per-employee fines because of the current language of OSHA's regulations. If adopted, the practical effect of the rule will be to allow OSHA to levy multiple fines for what is effectively the same violation.
What to Do
Given the potential for increased penalties, employers should make certain that all employees receive required PPE, and that all PPE training requirements are followed. In addition, documentation of compliance, such as attendance sheets, must be maintained regularly. Employers should not forget about the importance of make-up sessions for employees that may have missed group training, and that training should be multilingual for workforces comprised of individuals who do not speak English.
If you have questions about how this regulation will affect your business, or wish to review your PPE policies, please contact Mr. Gonzalez at 312-558-9779 or at egonzalez@elvisgonzalezltd.com.
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