employers from an employee’s civil claim. Typically, an injured employee can circumvent workers’ compensation’s preclusive effect only if he/she can show something akin to an intentional tort (i.e., the employer knowingly and intentionally exposed the employee to an unsafe condition). With OSHA’s Continued on page 61 issue more General Duty Clause citations for an employer’s failure to adhere to the more stringent “voluntary” PELs. In issuing the General Duty Clause citations, OSHA may likely rely on a 1987 District of Columbia Circuit Court of Appeals decision to claim that OSHA can issue a General Duty Clause citation in the face of a specific standard when “an employer knows a particular safety or health standard is inadequate to protect his workers against the specific hazard it is intended to address.” (Int’l Union UAW v. General Dynamics Land Systems Div., 815 F.2d 1570, D.C. Cir. 1987). Here, because OSHA has now publicly proclaimed that certain of its existing PELs are inadequate to protect employee safety, it may also claim that all employers are aware or should be aware that the PELs are unsafe. In turn, OSHA may rely on General Dynamics to claim that it is authorized to cite the employer based on the more stringent voluntary PELs, even in the face of case law and OSHA’s internal guidance. Unfortunately, it is unclear whether OSHA’s new tactic will survive should it be challenged to the review commission or the federal appeals courts. What is certain, however, is that if an employer receives a General Duty Clause citation for failing to adhere to the annotated PELs, its only remedy will be to contest the citation through litigation, asserting that it relied upon the promulgated PELs in the regulations. Additional OSHA Compliance Obligations and Concerns If this compliance strategy is upheld, employers will be forced to reevaluate their existing compliance programs to avoid potential citations and will have to consider the following. • Institute additional industrial hygiene monitoring to determine whether the voluntary PELs are exceeded. • Conduct additional assessments to determine whether existing personal protective equipment is adequate. • Determine whether engineering or administrative controls may be required. • Evaluate whether a respiratory protection program may be required. • Conduct additional training of managers and employees on the hazards created by the lower exposure levels and enforce compliance with the reduced exposure levels, with discipline. In addition to potential OSHA liability, OSHA’s annotated PELs raise several issues that extend to workers’ compensation and civil liability in the event an employee or contractor becomes injured or ill due to exposure to toxic or hazardous substances. In most states, workers’ compensation protects F A S T • S M O O T H • E F F I C I E N T At Orthman Conveying Systems we have the capability to design and manufacture bulk material handling systems of any scope. Quality assurance is #1. Our products are factory tested before shipment in order to assure the highest quality. Our proof lies in the testimonies of thousands of customers whose expectations have been surpassed. We have one goal: To produce conveyor equipment that pays it’s own way! Orthman Conveying Systems Lexington, NE 877-664-2687 • conveyusa.com proud member: NATIONAL RENDERERS ASSOCIATION www.rendermagazine.com Render April 2014 59
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