OSHA could multiply fines by number affected

'Clarification' opens employers to higher fines

Lapses in personal protective equipment and training could soon become a lot more costly. The Occupational Safety and Health Administration has proposed a "clarification" of rules, including the respirator protection and bloodborne pathogen standards, that give it authority to magnify fines for employers.

If employees do not use personal protective equipment (PPE) when exposed to a hazard or if they don't receive their annual training, the fine could be multiplied by the number of employees affected. In other words, each employee in a department or facility could represent a separate violation.

If the proposed wording change goes into effect, employers could feel the heat, says Bruce Cunha, RN, MS, COHN-S, manager of employee health and safety at Marshfield (WI) Clinic. "You've really got to be sure your employees are trained and have the right PPE," Cunha says.

According to OSHA's explanation in the Federal Register, the agency always intended for standards to apply individually to employees. "The amendments add no new compliance obligations," OSHA states. "Employers are not required to provide any new type of PPE or training, to provide PPE or training to any employee not already covered by the existing requirements, or to provide PPE or training in a different manner than that already required. The amendments simply clarify the remedy for violations of these requirements."

In a statement, Assistant Secretary of Labor for OSHA Edwin G. Foulke Jr. said, "We want employers to understand the importance of complying with OSHA's PPE rule for each and every one of their employees."

As a practical matter, the rule "clarification" opens up employers to much higher fines. Yet OSHA notes that it often groups violations for a single penalty and reserves the "per-employee" citation "where the resulting heightened aggregate penalty is appropriate to deter flagrant violators and increase the impact of OSHA's limited resources."

An OSHA spokesperson said, "It is not intended to work a fundamental change in the conduct of inspections or the number of citations, but rather to ensure that an appropriately high penalty can be assessed in appropriate cases."

The Association of Occupational Health Professionals in Healthcare (AOHP) in Warrendale, PA, offered support for OSHA's emphasis on protecting each employee, although the association still is reviewing the potential ramifications of a "clarification" that could result in per-employee fines. "All of the standards that include the use PPE should have common language that makes it clear to employers that PPE must be made available for each employee and that each employee must be trained in the proper use of the PPE," says MaryAnn Gruden, MSN, CRNP, NP-C, COHN-S/CM, employee health coordinator at Western Pennsylvania Hospital (West Penn) in Pittsburgh and AOHP's liaison with OSHA.

The emphasis of the potential for per-employee citations actually could give employee health professionals more leverage, notes Bill Borwegen, MPH, occupational safety and health director for the Service Employees International Union (SEIU), which represents health care workers. "This is an opportunity for the occupational health professionals in health care to assert a greater authority," he says. "They're the only ones who are adequately trained to deal with respiratory protection issues." [Editor's note: The proposed rule ran in the Aug. 19 Federal Register. It is available at www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=21055.]