OSHA's Final Rule on PPE

On 12 December 2008, OSHA issued its "final rule on Clarification of Employers' Duty to Provide Personal Protective Equipment and Train Each Employee." The rule revises OSHA standards to clarify that, for employers to be in compliance, they must provide personal protective equipment (PPE) and hazards training for each employee covered by the standards.

Each employee not protected may be considered a separate violation and penalties assessed accordingly. This revised language is consistent with language in other standards for which per-employee citations have been upheld.

The final rule amendments do not add new compliance obligations. Employers are not required to provide new kinds of PPE or hazards training or use a different approach than what is already required. Additionally, employers are not required to provide PPE or training to employees not already covered by existing requirements.

"This technical correction to the PPE standard brings it in line with other OSHA safety and health standards," said Acting Assistant Secretary of Labor for OSHA Thomas M. Stohler. "By making this change, those few employers who egregiously violate the OSHA PPE standard can be held fully accountable for violations affecting each employee who is not provided proper PPE. This kind of vigorous enforcement is a vital component of OSHA's balanced approach to workplace safety and health."

Please be aware that the folks at OSHA tell us that they will only use this "multiple citation" tool in the most egregious of cases, but the standard does not say that. In the past, 5 workers on the jobsite caught not wearing a hard hat when one was required, could result in one citation lumping all of the 5 violations into one. Under the new revision (beginning on 12 January 2009), that same scenario could result in 5 citations with 5 times the fine.

For now, OSHA personnel will be relying on an agency guidance document, Handling of Cases To Be Proposed for Violation-By-Violation Penalties.

According to that document, to issue per-employee fines, they must be classified as willful and meet at least one of the following:

• Violation resulted in worker fatalities, a worksite catastrophe or a large number of injuries or illnesses.
• Violations resulted in persistently high rates of worker injuries or illnesses.
• Employer has an extensive history of prior OSHA violations.
• Employer has intentionally disregarded its OSHA responsibilities
• Employer's conduct taken as a whole amounts to a clear bad faith in the performance of its OSHA duties, or
• Employer has committed a large number of violations that significantly undermine the effectiveness of any OSHA safety or health program that might be in place.

As always, it is very important for supervisory personnel to document every instance when you have instructed workers on PPE, disciplined workers on PPE violations, etc. Write it down in your daily log! This is evidence that you are taking the necessary steps to assure compliance.

Of course, if you are diligent enough to keep safety activities in your daily log, you probably won't be subject to these mulitple fines anyway!