Date: Aug 16, 2002
In its revised respirator standard, OSHA
requires that employers "select and provide an appropriate respirator based on
the respiratory hazard(s) to which the worker is exposed." Under the former
respirator standard for the construction industry, 29 CFR Part 1926.103(a)(1),
respirators had to be provided and used for emergencies. In this case, Fluor
Daniel was cited for willfully failing to provide emergency escape respirators.
Secretary of Labor vs. Fluor Daniel illustrates that an employer's
decision whether or not to provide respirators for escape in emergencies must be
based on objective information. Also, this case allows OSHA to apply the
standard of care across the board. Thus, a company's subjective belief that
respirators are not needed is not a defense for willfully violating the act.
Fluor Daniel stated that emergency respirators
were not needed because evacuation was the quickest remedy. In a decision upheld
by the Occupational Safety and Health Review Commission (OSHRC), the trial court
rejected this argument. They said that respirators were required because Fluor
Daniel ignored the possibility that not all employees would have been able to
evacuate quickly. The judge concluded that Fluor Daniel willfully substituted
its own judgment for the act's requirements.
Fluor Daniel was a contractor at a six-story,
40,000 square-foot chemical manufacturing facility operated by another employer.
The Administrative Law Judge (ALJ) found that the host employer provided its own
employees with escape respirators and had supplied them to Fluor Daniel
employees prior to 1994, at which time it notified Fluor Daniel that it would no
longer do so. Fluor Daniel asked the host employer to reinstate the policy. When
it refused, Fluor Daniel decided immediate evacuation was superior to providing
the respirators nominally required by the standard.
The court concluded that Fluor Daniel did not
act in good faith because it was not being objective about potential dangers at
the facility. Its employees were working near hazardous gases at a facility
where a prior emergency involved the release of chlorine. The commission said
Fluor Daniel ignored the plain command of the standard that respirators must be
provided in emergencies.
In testimony at the trial, Fluor Daniel's
safety experts relied on their assessment that engineering controls, the
evacuation plan and other safety features at the site replaced the need for
emergency respirators, concluding evacuation was the fastest remedy.
Both the commission and the ALJ ignored one
important factor in this case: The need for emergency escape respirators will
inevitably depend on the potential for employees to be exposed to hazards and
possible injury from direct exposure to chemicals or an inability to reach
safety. The commission's assertion that respirators are required in emergencies
must be tempered by Supreme Court and other precedent-setting cases. The general legal rule is that before a standard applies, a hazard must exist. Under the
current standard, respirators are required when they are necessary to protect
employees from hazards.
In many cases involving highly hazardous
chemicals, a quick escape may be possible and preferable to donning respirators
in the panic of an emergency. Unfortunately, the revised OSHA standard addresses
only when emergency escape respirators must be inspected, not used.
Implications for Other Employers
Therefore, when should employers use escape
respirators? The personal protective equipment (PPE) standards require that
employers assess the workplace and determine what PPE is necessary to protect
against identified risks. Fluor Daniel failed to assess its employees' exposures
in an objective and systematic fashion, relying instead on expert opinion.
However, even expert opinion must be based on fact before courts will accept it
as relevant evidence.
To prove that safety in an emergency does not
require escape respirators, the employer would have to show that, under a
worst-case scenario, employees would not be at risk of injury from chemical
exposure to or inability to escape. Factors to be considered include the nature
and effects of the chemical, the quantities and rates of release, the location
of the employees in relation to the release, and the difficulty and time to
reach safety once an alarm is sounded. If using emergency respirators does not
improve employees' safety, or if the respirators interfere with employees'
ability to reach refuge quickly, the respirators are not required. The key is
providing an objective, fact-based analysis, not simply expert opinion.
This article appeared in Compliance Magazine
(August 2002) and it is reprinted with permission of Compliance
Magazine. Copyright © 2002 by IHS Publishing Group. All
For further information about this article, please contact
David G. Sarvadi at 202-434-4249
or by e-mail at email@example.com.