Employer's Duty to Provide Personal Protective Equipment and Train Each Employee Now Carries With It the Potential for "Per-Employee" Penalties

January 8, 2009
by JILL HYMAN KAPLAN
Client Alert Newsletter Forecast 2009

Effective January 12, 2009, a U.S. Occupational Health and Safety Administration ("OSHA") Final Rule clarifies that OSHA's Personal Protective Equipment ("PPE") and training requirements impose a compliance duty to each and every employee covered by the standards. Accordingly, noncompliance with these standards exposes the employer to penalties on a per-employee basis. Whereas the OSHA standards have always been interpreted to provide for separate penalties for each separate violation, certain OSHA Review Commission decisions had concluded that, based on differences in wording, separate violations did not mean that a failure to provide PPE or train employees could be multiplied by the number of employees. This new language now specifies that the existing PPE provisions may be cited separately for each employee who requires PPE but who does not receive it, and the training provisions may be cited separately for each employee who requires training but who does not receive it. With OSHA's limited budget, this new rule could provide an incentive for OSHA to focus on these requirements and assess sizeable penalties in the future. Accordingly, now would be a good time for employers to review their existing PPE and training programs to confirm they are in compliance and thereby limit exposure to OSHA's potentially significant penalties.