OSHA Proposes Change in Enforcement of PPE Training Standard
Designed so OSHA can cite on a per-employee basis 
OSHA is proposing to amend its regulations to add language to explicitly state that noncompliance with the personal protective equipment (PPE) and training requirements in its safety and health standards will expose the employer to liability on a per-employee basis. The amendments consist of new paragraphs added to the introductory sections of the listed parts and changes to the language of some existing respirator and training requirements. This action is in response to recent decisions of the Occupational Safety and Health Review Commission indicating that differences in wording among the various PPE and training provisions in OSHA safety and health standards affect the Agency’s ability to treat an employer’s failure to provide PPE or training to each covered employee as a separate violation. The amendments add no new compliance obligations. Employers are not required to provide any new type of PPE or training, to provide PPE or training to any employee not already covered by the existing requirements, or to provide PPE or training in a different manner than that already required. The amendments simply clarify the remedy for violations of these requirements.
The proposal discusses several key cases in the history of per-employee citation, such as the Ho decision. This case involved 11 untrained workers directed to remove asbestos without respiratory protection from a Houston building undergoing demolition. OSHRC vacated all but one of the respiratory and one of the training violations, believing that “the plain language of the standard addresses employees in the aggregate, not individually.” This was affirmed, although on different grounds, by the 5th U.S. Circuit Court of Appeals. Also discussed is Secretary of Labor v. Manganas Painting Co., (Rev. Comm’n 2007), where OSHRC found the initial respiratory protection paragraph of the 1993 construction lead standard (1926.62(f)(1)) authorizes per-employee citations.
The proposal states “The failure to provide an appropriate respirator to each such employee may expose the employer to per-employee citations.” OSHA said its Advisory Committee on Construction Safety and Health supports the changes proposed for the construction standards.
