OSHA Issues New Enforcement Policy For Respiratory Hazards
On December 7, 2018, OSHA issued a little-noticed new enforcement policy addressing respiratory hazards not covered by OSHA permissible exposure limits (PEL). The new policy supersedes OSHA’s 2003 policy on this topic. For many years, OSHA has typically (but not exclusively) issued citations to employers when respiratory exposures have exceeded PELs in the workplace. The new enforcement policy explains the circumstances under which OSHA may issue a citation for respiratory hazards from an air contaminant under OSHA’s General Duty Clause (GDC) if OSHA has not issued a PEL or if unprotected workers are exposed to air contaminants at levels above a recognized occupational exposure limit (OEL) but below a PEL. The GDC is a statutory provision found in Section 5(a)(1) of the OSH Act. In general, it provides that employers must furnish to employees “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. Section 654(a)(1). In implementing the OSH Act, OSHA has provided in 29 C.F.R. Section 1910.5(f) that employers that comply with OSHA standards “shall be deemed” to comply with the GDC, but “only to the extent of the condition, practice, means, method, operation, or process covered by the standard.” The “but only to the extent” phrase in Section 1910.5(f) has invited uncertainty regarding the application of Section 1910.5(f)’s protections in cases where no PEL has been established for an air contaminant or, where a PEL has been established, but exposures to unprotected workers are below the PEL but above a recognized OEL for the air contaminant at issue. The new enforcement policy clarifies the circumstances under which OSHA may allege a violation of the GDC when an OEL has been exceeded, but not a PEL. Specifically, OSHA may assert a GDC violation for respiratory exposures in cases where OSHA determines that the following four elements have been met:
The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
The hazard was recognized;
The hazard was causing or was likely to cause death or serious physical harm; and
There was a feasible and useful method to correct the hazard.
The new enforcement guidance is useful as it clarifies, in straightforward and unambiguous terms, the circumstances under which OSHA may be inclined to issue a citation under the GDC for workplace exposures to air contaminants within a PEL but above a recognized OEL. Although the current OSHA Field Office Manual confirms that a GDC violation may be warranted when exposures are above an OEL but below a PEL, the new enforcement policy provides significantly more guidance on the legal burden OSHA must satisfy in meeting the four elements required to prove a GDC violation. It is important to note the relevance of secondary sources of information, including industry or trade association guidance, industry studies, safety data sheets (SDS), and related sources in OSHA’s determination of whether a GDC citation may be issued.
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