Follow OSH Act When Evaluating Respiratory Hazards


By William E. Parker January 14, 2020
worker wearing a respirator

​Employers must evaluate respiratory hazards at their workplace whenever the potential exists for employees to be overexposed to contaminants, according to the 9th U.S. Circuit Court of Appeals.

An Occupational Safety and Health Act (OSH Act) regulation states that employers must "identify and evaluate the respiratory hazard(s) in the workplace," including "a reasonable estimate of employee exposures to respiratory hazard(s)." The regulations also provide that "[a] respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee."

In 2009, Seward Ship's Drydock Inc. was assessed penalties totaling $34,000 for OSH Act violations, but the administrative law judge (ALJ) reviewing the case declined to find a violation. The ALJ ruled that the employer had fulfilled its responsibility under the regulations because a certified marine chemist had tested the workspace and certified that it was safe. The secretary of labor petitioned the Occupational Safety and Health Review Commission to determine whether the employer had met its responsibility to evaluate respiratory hazards.

On review, the commission asked the parties a question neither had considered: whether an employer must evaluate respiratory hazards before a determination has been made that respirators are necessary to protect the health of employees. The commission concluded that the OSH Act regulations required employers to evaluate respiratory hazards only if the secretary could show that respirators were necessary.

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On appeal, the 9th Circuit reversed. First, the court noted that the definition of "hazard" covers a thing that "might operate against success or safety" and is "a possible source of peril, danger, duress, or difficulty." Accordingly, the requirement that the employer identify and evaluate respiratory hazards could not be limited to situations in which the employer could already determine that respirators are necessary.

Second, the court noted that the primary objective of the OSH Act regulations is to prevent atmospheric contamination. That objective would be undermined by the commission's conclusion. Accordingly, the court held that the OSH Act regulations require employers to identify and examine respiratory hazards in the workplace whenever there is a potential for overexposure.

Secretary of Labor v. Seward Ship's Drydock Inc., 9th Cir., No. 18-71216 (Sept. 11, 2019).

Professional Pointer: This case is a good reminder to have a worksite fully evaluated any time there is a possible respiratory hazard to help avoid exposure to OSH Act penalties.

William E. Parker is an attorney with Peters, Revnew, Kappenman & Anderson PA, the Worklaw® Network member firm in Minneapolis.


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