Interpretation of a safety regulation sometimes turns on the meaning of one word. That was the case regarding an OSHA fine for lack of PPE. Now a review panel has taken another look at the matter.
OSHA inspected a work site in Stuart, FL, where Custom Built Marine Construction was renovating a boat.
During the inspection, the OSHA inspector saw a Custom employee using a jackhammer to chip away concrete while his supervisor stood nearby. Pieces of concrete were flying into the air. Neither the employee nor the supervisor were wearing eye protection.
Two pairs of protective eye wear were on site. The employees told the OSHA inspector they knew they could have used the eye protection if they felt they needed it.
OSHA issued a serious violation to Custom because the two employees weren’t wearing eye protection while operating a jackhammer. OSHA said Custom violated construction standard 1926.102(a)(1) which says the employer should “provide” eye protection in such a situation.
The case went to an administrative law judge (ALJ) of the Occupational Safety and Health Review Commission (OSHRC). The judge ruled, “the word ‘provide’ is not ambiguous and is commonly understood to mean ‘furnish’ or ‘make available.'”
For that reason, the judge vacated the violation against Custom, effectively saying the company had abided by the standard by simply providing the PPE. OSHA disagreed with the judge’s ruling and appealed it to the entire OSHRC.
Compliance doesn’t mean ‘available on request’
The OSHRC noted that it had addressed this issue 30 years ago.
In a previous ruling, the commission rejected the “contention that making such protection available ‘on request’ constitutes compliance.”
The OSHRC said 1926.102(a)(1) must be read in context with the “General Safety and Health Provisions” of Part 1926 which states, “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 this part indicates the need for using such equipment to reduce the hazards to the employees.”
For that reason, the OSHRC reversed the decision of the ALJ. The serious citation and $2,400 fine were affirmed.
What do you think about this decision? What do you do in a situation when you supply PPE but an employee chooses not to wear it? Let us know in the comments below.
(Secretary of Labor v. Custom Built Marine Construction, OSHRC No. 11-0977, 12/20/12)
