By: Andi S. Kenney
On November 6, 2013, the Fifth Circuit Court of Appeals affirmed an Administrative Law Judge’s decision that Shaw Global Services, Inc. violated the respirator fit-testing requirements by allowing sixteen months between fit tests. Shaw Global Energy Services v. Perez, Secretary of Labor, No. 12-60834 (5th. Cir., Nov. 6, 2013). The respirator standard requires an employer to “ensure that an employee using a tight-fitting facepiece respirator is fit tested prior to initial use of the respirator, whenever a different respirator facepiece . . . is used, and at least annually thereafter.” 29 CFR §1910.134(f)(2) (emphasis added). The parties did not dispute that Shaw conducted appropriate initial and subsequent fit testing; the issue was whether Shaw’s subsequent fit tests were completed in a timely manner. Shaw at 6.
The employer argued it complied with the annual fit-testing requirement because “at least annually thereafter” means that fit testing must be completed at least once each calendar year. By conducting initial fit-testing in June 2007 and subsequent fit-testing in October 2008, Shaw concluded that it met the annual retest requirement. The Secretary disagreed, arguing that “at least annually” meant “no later than 365 days after the previous testing.” Shaw at 7.
The court deferred to the Secretary in this instance, finding the Secretary’s interpretation consistent with the regulatory language and the purpose of the standard. The court noted that the employer’s interpretation could lead to a twenty-three month gap if the initial fit test was in January of one year and the retest was not completed until December of the subsequent year. Such a delay would frustrate the regulations purpose as reflected in the preamble of “standardizing the fit-testing protocols by ensuring that there are not significant fluctuations in the amount of time between tests.” Id. However, the court did not embrace OSHA’s interpretation in its entirely, “leav[ing] for another day the question of whether a gap between testing of a year and a few days would violate § 1910.134(f)(2).” Shaw at 7, fn. 3.
Although the court’s opinion focused solely on the respirator standard, it may have broader applicability because many other OSHA standards require action “at least annually.” The hearing conservation standard, for example, requires the employer to conduct audiograms at least annually (29 CFR 1910.95(g)(6)). Likewise, the lockout/tagout standard requires the employer to conduct periodic inspections of its energy control procedures at least annually (29 CFR 1910.147(c)(6)), while the fire extinguisher standard requires the employer to conduct training at least annually for certain employees (29 CFR 1910.157(d)(3) and (g)). Equipment inspections, chemical monitoring and medical examinations, comprehensive program reviews and retraining may also be required at least annually. The Shaw case is a reminder that to ensure compliance, employers must not only focus on the content of their OSHA programs but must also be mindful of the calendar when implementing them.