Does “Each Employee” Have to be Trained?
OSHA Hears Testimony
On PPE Enforcement Proposal
By Scott Schneider
When OSHA inspectors come on a jobsite, one thing they inspect is compliance with the OSHA rules on training and personal protective equipment (PPE). Every worker must be properly trained, and every worker who needs it must have the proper PPE (respirator, hard hat, safety glasses, etc.).
Recently, however, the Occupational Safety and Health Review Commission (OSHRC), relying on grammatical inconsistencies in the OSHA regulations, ruled that unless the standard explicitly says that training is required for “each employee,” OSHA can only issue one citation, even if none of the employees were trained. In contrast, OSHA believes it should be able to issue a separate citation for every worker who was not trained. Clearly, if an employer is only going to be cited once no matter how few of its employees are trained or provided PPE, then there is little incentive for unscrupulous employers to make sure everyone is properly prepared.
OSHA’s proposed changes for the construction standards affect the following specific rules:
- 1926.60: Methylenedianiline – Respirator use
- 1926.62: Lead – PPE
- 1926.761: Fall Protection Training
- 1926.1101: Asbestos - respirator use, training
- 1926.1126: Hexavalent Chromium – Respirator use
- 1926.1127: Cadmium – Respirator use
The proposal also creates two new requirements in Subpart C – General Safety and Health Provisions (1926.20). The new requirements – (f)1 and (f)2 – require that PPE and training be provided to “each employee” and that each failure to provide it can be cited as a separate violation.
In August, OSHA proposed several grammatical corrections to its regulations to clarify its enforcement options. Wherever the rules say that employers must “train employees,” OSHA proposed changing them to read “train each employee.” Likewise for PPE.
On October 6, OSHA held a public hearing on its proposal. The agency heard testimony from nine witnesses, including the AFL-CIO, the Building and Construction Trades Department (BCTD), the Associated Builders and Contractors (ABC), the National Association of Home Builders (NAHB), the U.S. Chamber of Commerce and others. The hearing lasted less than two hours – one of the shortest in OSHA history – and very few questions were asked.
The ABC and NAHB, both largely non-union associations, agreed that OSHA should be allowed to issue multiple citations but only in situations where there were “egregious” violations and serious injuries or deaths. They insisted that this restriction be written into the proposal. According to the attorney for the ABC, unions might use accumulated citations to bolster organizing campaigns against ABC companies or to encourage “responsible contractor” laws that stress the need to hire contractors with strong safety records.
The BCTD and AFL-CIO agreed that multiple citations could be limited to flagrant situations but asked that OSHA make it clear that the citation rule applies to all PPE, not just respirators (the proposal appears to focus one-sidedly on respirator use).
The Chamber argued that the whole rulemaking was outside OSHA’s authority and should be thrown out.
OSHA will now review the testimony and publish its final rule next year. The Fund’s Occupational Safety and Health Division will keep readers informed of its progress.
[Scott Schneider is the LHSFNA’s Director of Occupational Safety and Health.]