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Asbestos Violations – Every Worker Counts, and It’s About Time!

A new Federal OSHA rule embodies the spirit of the new Obama administration which we hope will return OSHA to a focus on protecting the health and safety of workers. This rule followed a bad decision and some downright awful and/or inconsistent OSH Review Commission decisions, and an adverse majority ruling by the U.S. Court of Appeals for the Fifth Circuit. It was, however, one particular outrageous case of an employer’s disregard for workers’ health in an asbestos case that moved OSHA forward here.

It involved a case against Erik Ho, a Texas businessman, who was cited for multiple violations of the construction asbestos standard’s respirator and training provisions. Ho’s conduct was particularly flagrant. He hired eleven undocumented Mexican employees to remove asbestos from a vacant building without providing any of them with appropriate protective equipment, including respirators, and without training them on the hazards of asbestos. Ho persisted in exposing the unprotected, untrained employees to asbestos even after a city building inspector shut down the worksite, at which point Ho began operating secretly at night behind locked gates.

The citations charged Ho with separate violations for each of the eleven employees not provided a respirator. Ho was also charged with separate violations for not training each of the eleven employees. A divided OSH Review Commission vacated all but one of the respirator and one of the training violations. According to the majority, the requirement to provide respirators and ensure their use involved the single act of providing respirators to the employees in the group performing the specified asbestos work. 17 O.S.H. Cas. (BNA) at 1372. Thus, the majority concluded, "the plain language of the standard addresses employees in the aggregate, not individually." The majority reached this conclusion despite acknowledging that various subparagraphs immediately following the cited provision required particularly employee-specific actions, such as fit-testing individual employees. The majority adopted an equally narrow interpretation of the training requirement.

Commissioner Thomasina Rodgers dissented, arguing that the plain wording of the respirator and training provisions authorizes OSHA to treat as a discrete violation each employee not provided and required to use an appropriate respirator, and each employee not trained in asbestos hazards. Her worker safety oriented perspective is now the law.

The bottom line of this OSHA final rule is:

"to make it unmistakably clear that each covered employee is required to receive PPE and training, and that each instance when an employee subject to a PPE or training requirement does not receive the required PPE or training may be considered a separate violation subject to a separate penalty." (73 Fed Reg 75569)

The final rule can be found here: Clarification of Employer Duty To Provide Personal Protective Equipment and Train Each Employee

Let’s hope this is the start of a series of pro-worker, pro-safety, stances by Federal OSHA, an agency whose mission was always intended to be the protection of worker health and safety. It’s been too long, but at long last it seems OSHA is back on track.

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