Workforce Bulletin

By Eric J. Conn, Head of EBG’s OSHA Practice Group

We are asked frequently by employers in the restaurant, delicatessen, and grocery industries whether OSHA’s Personal Protective Equipment (PPE) and Hand Protection regulations require the use of cut-resistant gloves for employees who work with knives or slicers.  Some employers have even reported that OSHA representatives have told them that the use of cut-resistant gloves is mandatory for employees working with knives in food service.  Whether food service employees in kitchens, delicatessens, or grocery stores are required to wear cut-resistant gloves, however, is not as clear-cut as OSHA has apparently been suggesting.

What is clear is that OSHA’s PPE standards are “performance-based” standards, not “specification” standards.  What that means is, the PPE standards do not proscribe specific PPE for specific circumstances.  Rather, the standards defer to employers’ reasonable judgment about what PPE is necessary, for which employees, in which circumstances.

The applicable standard, 29 CFR 1910.138(a), provides:

“Employers shall select and require employees to use appropriate hand protection when employees' hands are exposed to hazards such as those from skin absorption of harmful substances; severe cuts or lacerations; severe abrasions; punctures; chemical burns; thermal burns; and harmful temperature extremes.”

1910.138(a) is part of a series of standards regarding PPE for various parts of the body that stem from a general PPE requirement set forth at 1910.132(d)(1), which provides that:

Employers “shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE).”

Under the plain language of these regulations, and a long history of enforcement policies and OSH Review Commission case law, if employers perform a good faith hazard assessment in connection with the work activities and equipment at their workplace, and they conclude based on that assessment that employees are not exposed to laceration/amputation hazards or that cut-resistant gloves are not appropriate PPE, and the conclusion is reasonable, then no citation should issue.

A July 3, 1995 Interpretation Letter issue by OSHA confirms this view of the PPE standards:

“What the employer is required to do is to perform a hazard assessment, and OSHA would expect that an employer will be particularly careful before considering that none of its employees in the listed occupations are exposed to hazards which necessitated the use of PPE.  In litigation, of course, it would be OSHA's burden to prove that a hazard assessment was not done.  OSHA also believes that a standard of objective reasonableness is implicit in the requirement, and that accordingly, OSHA could cite for an unreasonable assessment.  Again, the burden of proof would be on OSHA.”

Factors that will impact the reasonableness of an employer’s hazard assessment include:

1. The existence of past injuries (i.e., look for lacerations or amputations on past OSHA 300 Logs);
2. Employee input (e.g., employees generally dislike gloves in this context because they sacrifice feel and dexterity of their fingers in relation to the blade); and
3. The presence of other controls that protect against cuts, such as administrative safe cutting procedures and training, or engineering and equipment controls.

Last year we wrote a post on the OSHA Law Update blog regarding one very significant, recent case impacting this PPE analysis -- Sec’y of Labor v. Petro Hunt LLC, OSHRCJ, No. 11-0873 (June 2, 2012).

Back in March of this year, we answered five frequently asked questions related to OSHA inspections.  We received positive feedback from that post along with several requests to address new OSHA-related questions.  Accordingly, we started a new, monthly OSHA FAQ series last month, with the first FAQ post addressing potential triggers for OSHA inspections.

In this post, the second in the regular OSHA FAQ series, we focus on two common defenses to OSHA citations – “Lack of Employer Knowledge” and “Unpreventable Employee Misconduct,” and again, we have provided both a text ...

By Eric Conn, Head of the OSHA Practice Group

We recently had an article published by the Washington Legal Foundation entitled "OSHA Continues Trend of Informally Imposing New Rules."  The article expanded on an earlier post here on the OSHA Law Update Blog regarding OSHA's attempts to circumvent Formal Notice and Comment Rulemaking by changing regulatory requirements through interpretation letters, directives, and enforcement memoranda.  Here is a link to the original post.

Below is an excerpt from the expanded article, published this week in Washington Legal ...