A new enforcement policy from the Occupational Safety and Health Administration (“OSHA”) states employers may face citations for subjecting their employees to hazardous air contaminants even if the levels are below or not covered by a permissible exposure limit.

This new enforcement policy comes from OSHA’s recent memorandum released to the public on December 7, 2018.  Prior to this memorandum, OSHA typically issued citations to employers when respiratory hazards exceeded permissible exposure limits at their places of employment.

With this new policy however, OSHA clarifies that it will also rely upon the “general duty clause” to issue citations against employers for respiratory hazards, even if the exposure levels are below legal limits. The “general duty clause” requires employers to provide their employees with “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.”  29 U.S.C. § 654(a)(1).  To prove a violation of the “general duty clause,” an OSHA inspector must show:

  1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  2. The hazard was recognized;
  3. The hazard was causing or was likely to cause death or serious physical harm; and
  4. There was a feasible and useful method to correct the hazard.

If all four of those elements of the “general duty clause” are proven with sufficient evidence, OSHA may issue a citation against the employer for a respiratory hazard.

OSHA’s memorandum goes on to provide examples of what constitutes evidence for a respiratory hazard under each element of the “general duty clause” test.  Even if the elements of the “general duty clause” test are not proven and respiratory hazards exist, OSHA inspectors may issue a Hazard Alert Letter advising the employer that one or more employees are being exposed to a respiratory hazard.  The good news though is that a Hazard Alert Letter carries no fines or citations, offering the employer an opportunity to take remedial action.

While this change may place employers at additional risk for citations, it also signals OSHA’s desire to expand its enforcement methods beyond the decades-old permissible exposure limits mentioned in the memorandum.  These changes place more responsibility on employers to ensure their places of employment meet OSHA’s requirements.