Labor and the Law By Mark A. Lies II and Kerry M. Mohan Uncertainty in a Certain World Editor’s note – Mark A. Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw, LLP. He specializes in occupational safety and health and related employment law and civil litigation. Kerry M. Mohan is an associate with Seyfarth Shaw focusing on occupational safety and health, traditional labor matters, and related employment law and civil litigation. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information. For over three decades, the Occupational Safety and Health Administration (OSHA) has codified permissible exposure levels (PELs) that regulate employee exposure to toxic and hazardous substances (Code of Federal Regulations (CFR), Title 29, Part 1910.1000). Recently, OSHA has attempted to bypass its regulations and impose more stringent PELs through its General Duty Clause. For instance, in September 2013, OSHA issued an employer a General Duty Clause violation based on employee exposure to styrene, even though employees were exposed to styrene levels lower than the established PEL in the OSHA regulation. To make matters even more complicated, on October 24, 2013, OSHA published “voluntary” annotated PELs, recommending that employers adhere to PELs much more stringent than those established in the regulations. Thus, employers now face a period of uncertainty over whether adhering to OSHA’s written regulations constitutes compliance. OSHA Issues General Duty Clause Citation In September 2013, OSHA issued a Wisconsin employer, Fiberdome, Inc., a series of citations, including a General Duty Clause citation based on employee exposure to styrene. Under OSHA’s existing standard, employees cannot be exposed to more than 100 parts per million (ppm) of styrene over a weighted eight-hour time period (29 CFR 1910.1000, Table Z-2). Fiberdome adhered to that standard, as employees were exposed to approximately 65 ppm of styrene over a timeweighted eight-hour period. Nonetheless, after two employees experienced symptoms related to styrene exposure, OSHA issued Fiberdome a General Duty Clause citation for exposing employees to more than 50 ppm styrene over the timeweighted period, which is a voluntary recommended limit established by the National Institute for Occupational Safety and Health (NIOSH). Thus, OSHA bypassed its codified PEL for styrene and issued the General Duty Clause citation based on the more stringent, but not mandatory, NIOSH PEL. Further undermining its current PEL regulations, on October 24, 2013, OSHA issued its annotated PEL tables, which provide more stringent PELs than those contained in the current regulations (www.osha.gov/dsg/annotated-pels). Though OSHA has publicly stated that the annotated PELs are voluntary and cannot be enforced like the codified standards, OSHA promulgated the annotated PELs to ensure employers are aware that many of the current PELs “are dangerously out of date… and do not adequately protect workers.” In other words, by issuing the annotated PELs, OSHA has specifically notified employers that they can no longer adhere to many of the current PELs without creating a work environment that is hazardous to employee health. Is OSHA Permitted to Use General Duty Clause to Impose More Stringent PELs? Section 5(a)(1) of the Occupational Safety and Health Act is OSHA’s so-called General Duty Clause, which requires each employer to “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.” Thus, OSHA can theoretically issue a General Duty Clause citation whenever an employer fails to provide a safe workplace. The OSHA Review Commission and OSHA’s internal guidance, however, have consistently and regularly stated that OSHA cannot issue a General Duty Clause citation when a specific standard addresses the hazard(s) identified in a citation. The rationale behind this approach is that it would be unfair and deny employers due notice for OSHA to require conformance that is different from that in a specific standard and, thereby, expose employers to citations. Further, OSHA’s Field Operations Manual (FOM), which is intended to be the guidance document for enforcement of the act by the agency, provides that the General Duty Clause should not normally be used to impose a stricter requirement than that required by a standard. In fact, in discussing PELs, the FOM states: Example 4-25: A standard provides for a permissible exposure limit (PEL) of 5 ppm. Even if data establish that a 3 ppm level is a recognized hazard, Section 5(a) (1) shall not be cited to require that the lower level be achieved. If the standard has only a time-weighted average permissible exposure level and the hazard involves exposure above a recognized ceiling level, the Area Director shall consult with the Regional Administrator or designee, who shall discuss any proposed citation with the RSOL Regional Solicitor of Labor. Thus, OSHA’s internal guidance appears to specifically prohibit the use of the General Duty Clause to issue more stringent PELs, even when there may be data questioning the adequacy of the current PEL. OSHA Likely to Issue More General Duty Clause Citations Even though OSHA Review Commission case law and internal guidance recognize that OSHA cannot issue a General Duty Clause citation to impose more stringent PELs, OSHA’s publication of the annotated PELs likely means that OSHA will 58 April 2014 Render www.rendermagazine.com
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