OSHA Update—Eye and Face Protection

26 April 2016 Labor & Employment Law Perspectives Blog

On March 25, 2016, the Occupational Safety and Health Administration (“OSHA”) announced that employers across various industries will be subject to updated eye and face protection standards.  The final rule became effective on April 25, 2016, and revised related requirements in the general industry, maritime, and construction standards.  Employers subject to these standards should assess their eye and face safety equipment, policies, and procedures to ensure they are in compliance with the applicable OSHA regulations.

Personal protective equipment (“PPE”) for the eyes and face is intended to protect employees from hazards associated with flying objects and splashes of hazardous chemicals, among other similar and associated hazards.  According to OSHA, the final rule primarily does three things to update employee protections against these hazards.  First, it incorporates the most recent ANSI/International Safety Equipment Association eye and face protection standard.  Second, it removes the “oldest-referenced edition” of the ANSI standard.  And last, it amends the construction industry eye and face protection standard to make it consistent with the general industry and maritime standards.

Employers in these industries must now comply with or otherwise ensure that their regulated PPE devices “are at least as effective as” one of the following consensus standards: ANSI Z87.1-2010, ANSI Z87.1-2003, or ANSI Z87.1-1989 (R-1998).  See 29 CFR § 1910.133(b); 29 CFR § 1915.153(b); 29 CFR § 1917.91(a)(1); 29 CFR § 1918.101(a)(1).  As OSHA summarizes in providing its final rule, ANSI Z87.1-2010 outlines requirements for selecting, testing, using, and maintaining eye and face PPE.  But employers have some flexibility in such compliance under ANSI Z87.1-2003 and ANSI Z87.1-1989 (R-1998), which are prior versions of the standard.

It should be noted that despite OSHA’s incorporation of the ANSI standards into various regulatory schemes, employers are generally required to purchase the ANSI standards if they want to review them.  See, e.g., 29 C.F.R. § 1910.6(e) (noting that “[c]opies [of ANSI standards] are available for purchase from: American National Standards Institute’s e-Standards Store, 25 W 43rd Street, 4th Floor, New York, NY 10036; telephone: (212) 642-4980; Web site: http://webstore.ansi.org/”).  That said, OSHA states that employers may rely on manufacturer representations that PPE devices are compliant with the indicated standards without having to incur the expense of purchasing the ANSI standards.  Frankly, this statement is inconsistent, if not troubling, in light of OSHA’s staunch adherence to the concept that an employer may not shift its workplace safety obligations to third-parties through contract or reliance on their actions.  See, e.g., 29 U.S.C. § 654 (stating that “[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards . . . ; [and,] . . . shall comply with occupational safety and health standards promulgated under this Act”); Brock v. City Oil Well Serv. Co., 795 F.2d 507, 512 (5th Cir. 1986) (finding that “it is the employer’s responsibility to ensure that its employees are protected,” which “may [be accomplished] . . . through others if it chooses, but the duty to provide the protection remains the employer’s, and its agent’s failure to comply with a standard constitutes a violation by the employer”); Sec’y of Lab. v. Well Solutions, Inc., No. 91–340, 17 O.S.H. Cas. (BNA) 1211, 1214, 1995 WL 242595, at *3 (O.S.H.R.C. 1995) (noting that “[e]ven when it is customary in the industry,” an employer “may not completely rely” on third parties “to meet the [OSH Act’s] requirements on behalf of its own employees because to do so improperly shifts the [employer’s] responsibility for the health and safety of its employees to [those] third parties”).  For that reason, many employers will opt to purchase the incorporated ANSI standards and ensure for themselves that their eye and face PPE complies with OSHA’s requirements.

As in all cases involving government regulations, it behooves employers to develop policies, procedures, and practices that are compliant.  This is especially true with more technically complex regulatory schemes, such as many OSHA standards which incorporate other standards.  An attorney experienced with OSHA litigation, either individually or in conjunction with a qualified safety professional, can help employers navigate these safety requirements.

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