Employees must wear the PPE

The thought of being liable for multiple violations can be daunting. The Occupational Safety and Health Administration (OSHA) recently inspected a veterinary lab within the Marshfield (WI) Clinic in response to a complaint, says Bruce Cunha, RN, MS, COHN-S, manager of employee health and safety at the clinic.

"Much of the complaint was not sustained, but the inspector noted that while eye protection was provided, the PPE [personal protective equipment] wasn't being used by employees," Cunha says. The clinic was fined less than $1,000, which was reduced because it was a first violation. "Had that been under the new rule, we would have been fined 16 times," based on the number of potentially exposed employees in the lab, Cunha says.

As a result of the citation, he implemented a hazard assessment in all departments. He is also retraining managers, who may mistakenly think it's the employer's responsibility to provide the PPE but the employee's responsibility to wear it. "We've got to make sure the managers are enforcing [the requirement to use PPE] and [employees] are wearing PPE when needed," he says. "The bloodborne pathogen standard is clear. It is the employer's responsibility to make sure that the employees are wearing the PPE."

OSHA's clarification stems from rulings of the Occupational Safety and Health (OSH) Review Commission, which found that wording referring to training or PPE for "all [exposed] employees" created a requirement "in the aggregate." In other words, failure to provide respiratory protection would be one violation. Yet OSHA stated the agency "believes that a separate violation occurs for each employee who is not provided required PPE or training, and that a separate citation item and proposed penalty may be issued for each."

In seeking the clarification, OSHA is responding to an OSH Review Commission ruling in the case of Secretary of Labor v. Erik Ho. Ho, of Houston, was cited for hiring 11 undocumented Mexican immigrants to remove asbestos from a building without providing PPE or training them on the hazards of asbestos. The commission ruled that the wording of the standards allowed only single violations for the failure to provide respirators and training.

That interpretation was upheld by the U.S. Court of Appeals, though on somewhat different grounds. Meanwhile, the OSH Review Commission allowed per-employee citations in a different case, related to the construction lead standard, because of the wording.