Facts are Necessary in PPE Decisions: Secretary of Labor vs. Fluor Daniel, OSHRC Docket Nos, 96-1729 and 96-1730

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.

Case Background

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 Decision

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 rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.