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New OSHA Enforcement Policy Under General Duty Clause for Worksite Exposure to Air Contaminants

 By Gabrielle Sigel

OSHA’s Directorate of Enforcement Programs recently issued an enforcement memorandum to all OSHA Regional Administrators providing a new “Enforcement Policy for Respiratory Hazards Not Covered by OSHA Permissible Exposure Limits” (“Enforcement Policy”). OSHA’s 2003 policy on the same topic is now superseded and archived.

The Enforcement Policy explains how and when OSHA will cite an employer for respiratory hazards from an air contaminant under the OSH Act’s General Duty Clause (“GDC”). The GDC is the statutory requirement that an employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  29 U.S.C. § 654(a)(1).  By regulation, OSHA has stated that “An employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirement of section 5(a)(1) of the Act, but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.” 29 CFR 1910.5(f).  There is an open question as to whether and when an employer is in violation of the law if either (a) OSHA has not set a regulatory exposure limit for a particular chemical; or (b) exposures are below OSHA’s regulatory Permissible Exposure Limit (“PEL”), but above another organization’s recommended occupational exposure limit (“OEL”) for the same chemical.  An OEL can be issued by, for example, an industry group, U.S. EPA, the National Institute for Occupational Safety and Health, or the American Conference of Governmental Industrial Hygienists.

OSHA’s new Enforcement Policy states that a GDC violation for airborne chemical exposures cannot be alleged unless OSHA can meet the 4-element standard of proof imposed by the courts for any GDC violation:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  2. The hazard was recognized;
  3. The hazard was causing or was likely to cause death or serious physical harm; and,
  4. There was a feasible and useful method to correct the hazard.

The Enforcement Policy provides that exceeding an OEL is not sufficient evidence on its own to support a GDC citation; all four of the above GDC proof elements must be met. However, even if all four elements cannot be proven, OSHA still can issue a Hazard Alert Letter (“HAL”) if exposures are above an OEL.  The Enforcement Policy includes a sample HAL. 

The Enforcement Policy also provides examples of the evidence that OSHA needs to prove a GDC violation for airborne exposures above an OEL. With respect to the first element—that employees were exposed—OSHA can rely on air sampling and other workplace-based evidence, including witness statements.  However, in contrast to many OSHA requirements when there is a regulatory PEL, in GDC cases, OSHA will consider whether the exposed employee is wearing respiratory protection.  Unlike the 2003 version of the policy, the 2018 Enforcement Policy specifically states that “if the exposed employees were wearing appropriate respiratory protection with no deficiencies in the respirator program, then the likelihood that OSHA could establish a respiratory hazard covered by the general duty clause would be low.”  However, OSHA does not preclude a GDC citation if respirators are used; the Enforcement Policy provides the exception for a respirator program only if that program has “no deficiencies.”

With respect to element #2—hazard recognition—the Enforcement Policy states that this element is met if: (a) there is direct evidence of employer knowledge; or (b) if the employer should have known of the hazard. Direct evidence can include prior receipt of a HAL or information regarding the hazard in a Safety Data Sheet prepared by a chemical’s manufacturer.  Indirect evidence can include an OEL issued by an industry association, professional organization, or a non-OSHA government agency.  With respect to GDC proof elements #3 and #4, OSHA states it likely will be required to present expert testimony to prove its case.  However, that expert can rely on published studies and need not necessarily conduct a new study of the dangers of the hazard at that particular worksite. 

The Enforcement Policy does not expressly address whether OSHA will pursue GDC violations for chemicals for which OSHA has issued a PEL. As written, the new Policy does not prohibit a GDC citation in those circumstances.  The Enforcement Policy states that it applies when an air contaminant “is not covered” by an OSHA PEL, and does not include language restricting the policy to “those cases where an OSHA PEL has not been issued,” as the old version of the policy had stated.  (Emphases added.)  In addition, the new Policy refers Regional Administrators to the Field Operations Manual (“FOM”) for further guidance in preparing a GDC citation.  The current FOM expressly states that a GDC citation may be issued when there are exposures above an OEL but below an OSHA PEL.  FOM (8/02/2016) § III.D.2, Example 4‑25.

Therefore, under the Enforcement Policy, OSHA may assert that even employers with worksite air contaminant exposures below an OSHA PEL, as well as those using chemicals that do not have an issued OSHA PEL, are subject to a GDC citation, if there are unprotected worksite exposures above a recognized OEL.