Eye and Face Protection: Department of Labor v. OSHRC and Goltra Castings, Inc., 15 OSHC 1162 (1991)

Date: Jun 01, 1995

The Occupational Safety and Health Administration's (OSHA) recently revised standard on Personal Protective Equipment (PPE) at 29 C.F.R. 1910.132 requires that employers assess the hazards employees face and to provide personal protective equipment when:

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

Eye and face protection is required when each affected employee is "exposed to eye or face hazards from flying particles, molten metal, liquid chemicals, acids or caustic liquids, chemical gases or vapors, or potentially injurious light radiation." 1910.133. The standard formerly required this protection when "there is a reasonable probability that injury that can be prevented by such equipment." The courts consistently interpreted this requirement to require OSHA to demonstrate that an employer had actual or constructive knowledge of the potential hazard to sustain a citation.

Cases decided in the circuit courts as recently as the Department of Labor v. OSHRC and Goltra Castings, Inc. in 1991, and more recent cases decided by the Occupational Safety and Health Review Commission (OSHRC), used a reasonable person test to determine whether the employer should have known about the hazard. The Goltra case illustrates the courts' reasoning.

In one of Goltra's foundry operations, its employees were required to pour molten metal into molds at waist level. OSHA's expert testified that face shields were widely used throughout the foundry industry, and that it was generally accepted by "knowledgeable people that when you're pouring molten metal you should protect your face with a face shield." However, he admitted that he had never observed a foundry operation which relied on hand pouring in the fashion used by Goltra's employees. He also admitted that he was unfamiliar with the practices in the die cast industry, a related industry similar to Goltra's operation. Goltra's operation was the only hand pouring steel foundry in the U.S.

Moreover, Goltra's employees testified that use of the face shields created additional hazards, that none of the employees had been burned the pouring process and were not aware of any incidents involving other employees. Thus, Goltra said, there was not a hazard of eye or face injury to which the employees were exposed that the use of a face shield would mitigate.

OSHA argued that the company knew of the hazard and pointed to a prior settlement of a citation alleging failure to use face shields and other protective equipment. However, this citation was vacated by the OSHRC when the case was settled.

OSHA further argued that the OSHRC focused incorrectly on the probability of injury, instead of whether a reasonable person would conclude that a hazard existed that the face shields would control. The courts, OSHA said, should defer to the Agency's interpretation of its own regulation.

The Tenth Circuit Court of Appeals rejected OSHA's contentions. First, the court reiterated that the standard had to be construed in light of some objective test to satisfy the requirements of due process that "persons of ordinary intelligence [could have] a reasonable opportunity to know what is prohibited or demanded and act accordingly." OSHA's contention that the reasonable person test eliminated the consideration of the probability of injury was, said the court, unreasonable, particularly in light of the express language of the then-extant standard.

But, OSHA argued, the court should not have credited the testimony of Goltra's employees over OSHA's expert witness. The court noted that testimony about general industry practices is not entitled to great weight when the situation at issue differs. Goltra's evidence showed that its operations were different, and the judge below could therefore rely on the testimony of the employees. Although the lack of injury was not determinative of the existence of a hazard, the lack of prior experience corroborated the other evidence that the hazard did not exist, at least to the extent that a probability of injury existed which would have been prevented by the use of the equipment. Lacking actual or constructive knowledge of a hazard, Goltra had not committed a violation of the standard.

Similar outcomes have occurred in cases where employees add water to batteries or poured molten lead with a small, hand-held ladle onto a grid about waist high. The mere possibility that a chain of events could result in injury was deemed insufficient. There must be a "substantial likelihood" of the employee coming in contact with the hazardous agent. The First Circuit Court of Appeals goes further, it interprets the regulation to require a showing of a "significant risk" of injury before OSHA can impose liability on the employer.

This case and the others which have considered the issue have essentially come to the same conclusion: where a reasonable person discerns a hazard, protection is required. The OSHRC used the example of the routine exposure of a service station attendant checking the water level in a battery of an operation that does not create a "reasonable probability of injury." It is to be hoped that OSHA will interpret the newly revised standard in the same fashion.

This article appeared in Compliance Magazine (June 1995) and it is reprinted with permission of Compliance Magazine. Copyright © 2001 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.