Do I Have To Treat Employees Like Kids? Uhh… Sometimes.


 I hope that this Post is of no surprise to anyone, but in my recent quest to review basic aspects of the wonderful world of OSHA, I realized that the question of “do I have to make employees wear PPE” made it all the way to the full OSHRC last year.

 In Custom Built Marine, the Commission strongly reminded us that under Construction standard 1926.102(a)(1) governing eye protection, employers must ensure that employees actually use the eye protection and not simply make the eye protection available.

 The Commission commented that a 1983 OSHRC decision made this point clear, but neither the parties nor the ALJ meaningfully addressed this authority. Instead the Commission engaged in a more generalized analysis that may affect other personal protective equipment (PPE) standards.

 Of course, none of my readers have ever had to worry about employees not wearing safety glasses, hearing protection or foundry chaps.

 Nevertheless,  let’s stroll through the OSHRC’s reminder that employers must take specific steps to comply with PPE standards.

 In Custom Built Marine Construction, Inc., the Compliance Officer observed an employee using a jack hammer on a concrete bulkhead without eye protection. The Compliance Officer claimed that he saw pieces of concrete flying into the air while the employee was operating the jack hammer. OSHA issued a citation under 1926.102(a)(1), which provides that “employees shall be provided with eye and face protection when machines or operations present potential eye or face injury from physical, chemical, or radiation agents.” The employee admitted that he knew that PPE was available on site if he felt that his working conditions were unsafe.  The ALJ vacated the citation, holding that because the standard only required the employer to “furnish” or “make available” such protective equipment, the employer was in compliance with the standard.

 The Commission disagreed, noting that this issue had been addressed 30 years earlier in Clarence M. Jones, (1983). In Clarence M. Jones, the Commission held that 1926.102(a)(1) requires “an employer to ensure the use of eye and face protection.”

 The Commission further stated that this conclusion is clear when 1926.102(a)(1)is read together with the general safety and health provisions of 1926.20 and 21, which provide in  part that “the employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees.”

 As an important side note, I am surprised that OSHA does not employ 1926.20 and 21 more frequently, which far more than a 5(a)(1) general duty citation, requires construction employers to inspect job sites, provide PPE and develop safety programs even when a specific standard may not be applicable.

 The Commission reversed the ALJ’s decision to vacate the citation and assessed a penalty of $2,400.

 We’ll talk another day about defending against such claims by the increasingly hard to prove “unpreventable employee misconduct defense,” but I will tease you with a link to another decision last year, where one of my partners prevailed with that affirmative defense.

 We’ll also talk about steps that could have blunted OSHA’s prosecution in the case above.


About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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