In a final rule published December 12, 2008, the Occupational Safety and Health Administration (OSHA) allows employers who violate the agency’s rule on personal protective equipment (PPE) to be penalized on a per-employee basis. Previously, employers who failed to provide PPE to covered employees could be issued a citation for the aggregate offense only. Under the new rule, each instance in which any one employee is not provided with PPE or applicable safety training is deemed a separate OSH violation.

This rule does not, however, create any new OSHA safety and health standards or make substantive changes to the existing law. It merely clarifies an employer’s duty to provide PPE (including eye, hand, face, head, foot and hearing protection, respirators, and other forms of PPE) to each employee under the various respirator and training standards articulated in 29 CFR Parts 1910 through 1926.

The impetus for this rule was the Occupational Safety and Health Review Commission’s decision – later affirmed by the U.S. Court of Appeals for the Firth Circuit – that a Houston businessman who failed to provide respirators or safety training to 11 undocumented employees who handled asbestos could not be charged with safety violations for each employee, as the plain language of the safety standard addresses employees in the aggregate, not individually. Secretary of Labor v. Erik K. Ho, Ho Ho Ho Express, Inc. and Houston Fruitland, Inc., 20 O.S.H. Cas. (BNA) 1361 (Rev. Comm’n 2003), aff’d, Chao v. OSHRC and Erik K. Ho, 401 F.3d 355 (5th Cir. 2005).

In response, the final rule firmly states that:

The agency is proposing to amend its standards to make it unmistakably clear that each covered employee is required to receive PPE and training, and that each instance when an employee subject to a PPE or training requirement does not receive the required PPE or training may be considered a separate violation subject to a separate penalty.

This rule is yet another example of OSHA adopting a rule to expand and clarify its enforcement power. On February 13, 2008, a final rule became effective that set forth a scheme by which employers are required to pay for nearly all PPE, with limited exceptions. (72 Fed. Reg.64341-64440.)   While that rule sets forth the obligation to provide nearly all PPE in the workplace, this rule will create an extra incentive because it will force employers to be in compliance or be faced with multiple violations where they would have on faced single violation in the past. Thus, employers should be aware that should they fail to provide the necessary PPE, they could face substantially increased fines under the new rule, which goes into effect January 12, 2009.