The question of 'do I have to actually make my employees wear PPE' made it all the way to the full Occupational Safety and Health Review Commission (OSHRC) last year.

In the case of  Custom Built Marine Construction, Inc, the Commission strongly reminded us that under the construction standard 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.

"So Put In Your Ear Plugs, Put On Your Eyeshades…."  Tommy (The Who)

Let's stroll through the OSHRC's reminder that employers must take specific steps to comply with PPE standards.

In Custom Built Marine, a compliance officer observed an employee using a jackhammer 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 equipment. OSHA issued a citation under the regulation that 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.  An administrative law judge (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 the Clarence M. Jones case, the Commission held that the regulations require an employer "to ensure the use of eye and face protection."

And, in the Commission's view, the law's general safety and health provision only bolsters this conclusion since it proves 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 [there is a] need for using such equipment to reduce the hazards to the employees."  The Commission reversed the ALJ's decision to vacate the citation and assessed a penalty of $2,400.

It's actually surprising that OSHA does not employ this reasoning more frequently, since it 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.

In a future issue, we'll talk about steps that could have blunted OSHA's prosecution in the case above.

The author also writes our Firm's blog on safety and health, which can be found here.  For more information he may be contacted at HMavity@laborlawyers.com or (404) 231-1400.

Howard Mavity is a partner in the Atlanta office. He co-chairs the firm's Workplace Safety and Catastrophe Management Practice Group. He draws upon his past business experience in transportation, logistics, construction, and industrial supply to work with clients as a business partner, and focuses on eliminating employee problems by commonsense management. Howard has provided counsel for over 225 occasions of union activity, guided unionized companies, and has managed almost 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. He has coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. Howard is active in rulemaking and dealings with federal and state OSHA and other agencies. He overseas audits of corporate labor, HR, and safety compliance.

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