Client Alert

Last fall, we told you about the final OSHA Personal Protective Equipment ("PPE") standard issued by the US Department of Labor (click here for more information). The proposed rule does not change the types of employers covered by the PPE standard, nor does it change the categories of employees affected by the standard. In the next round of the process, DOL has now issued a proposed rule dealing with penalties for violation of the PPE standard (click here for more information). The most important aspect of the proposal is that where employers are required to provide personal protective equipment for employees, each individual violation is separate and carries a separate penalty. In other words, if 100 employees in a workplace are required to wear respirators, every employee who is not protected may constitute a separate violation for penalty purposes.

As you can easily see, there's a great deal of room for mischief here: The inspector is given discretion as to whether to assess separate penalties rather than dealing with groups as a single violation. Additionally, the employer may be penalized for three separate acts or omissions per violation: failure to provide the equipment, failure to train employees on the necessity for and use of the equipment, and failure to enforce the use of it. The usual OSHA view is that employee breaches of PPE policies must result in disciplinary action up to and including discharge.

The proposal promises to empower federal OSHA, as well as the state agencies operating under "state plans", to wield a potent weapon. Employers affected by this rule would be well advised to make their views known during the "notice-and-comment" period which expires on September 18, 2008.

If you have any questions regarding this Client Alert, please contact Charlie Edwards or any of our Labor and Employment attorneys.