October 28, 2010
Michael A. Hausknecht, Jeffrey M. Tanenbaum
Federal OSHA has announced a radical change to its interpretation of an employer’s obligations concerning employee exposure to occupational noise. The new obligations would be substantial and the potential cost to employers is immense. Employers with potential noise hazards need to review this announcement very carefully and determine how best to respond.
“Hey what’s that sound,
everybody look what’s goin’ down”
With little fanfare, the federal Occupational Safety and Health Administration (“OSHA”) has quietly announced that it is considering a radical change to its interpretation of an employer’s obligations concerning employee exposure to occupational noise. The announcement may have been quiet, but the impacts will be loud. If adopted in their current form, the new obligations will be substantial and the potential cost to employers is likely to be immense. Any employer with potential noise hazards needs to carefully review this announcement and consider whether to comment.
An October 19, 2010, notice from OSHA in the Federal Register invites the submission of comments by December 20, 2010, on the proposed change that would apply to all employers subject to OSHA’s general industry or construction industry occupational noise standards (29 CFR 1910.95 or 1926.52). 75 Fed. Reg. 64216 (10/19/10).
Under an interpretation dating back to 1983, OSHA has allowed employers to use a combination of “feasible administrative or engineering controls” and personal protective equipment (PPE) such as ear plugs and ear muffs, to protect employees from exposure to excessive levels of noise. As a practical matter, if PPE is sufficiently effective, OSHA has not required employers to implement more costly administrative or engineering controls. In most workplaces where a noise hazard exists, employers have been able to protect employees adequately by providing, and requiring use of, PPE.
By contrast, OSHA now is proposing a new interpretation of the regulatory phrase “feasible administrative or engineering controls.” The new proposal effectively compels employers to evaluate all work locations with noise at or above 90 dB to determine if there are engineering or administrative controls that are “capable of being done” or “achievable” that would reduce noise levels that employers must implement before turning to PPE to protect employees. To put the 90 dB threshold in perspective, a typical food blender is in the 88 dB range and a power mower is in the 96 dB range.
The only exception to the new rule requiring administrative or engineering controls to first reduce the noise levels is if such controls would be so expensive they would threaten the employer’s ability to remain in business. Even then, controls would be required if they meet “industry safety and health standards.” It is not clear exactly what would constitute an “industry safety and health standard.” This could be a formal standard set forth by trade associations or similar bodies, but might it also encompass something like one or two major employers in an industry implementing expensive new engineering controls, say by installing all new and quieter equipment in a new manufacturing facility? Would other employers in the industry with preexisting older facilities now have to do the same? It is also unclear where the line is between something that is prohibitively expensive and something that would put an enterprise out of business, or what level of documentation would be needed to qualify for this exception.
The proposal is clearer, on the very broad scope of engineering and administrative controls that would have to be evaluated and implemented. OSHA’s Federal Register notice notes that “engineering controls involve modifications to plant, equipment, processes[,] or materials that reduce the sound intensity at the source, by substituting quieter machines and processes, or by isolating the machine or its operator.” “Administrative controls involve modifications of work assignments to reduce employees’ exposure to noise, such as rotating employees so that they work in noisy areas for a short time.” Under OSHA’s current and long standing enforcement policy, “since effective engineering and administrative controls almost always cost more than a hearing conservation program based on hearing protectors, citations are rarely issued for failure to use such controls. . . . ” Quite clearly, if OSHA adopts its new interpretation, many employers will be compelled to make significant, costly changes to their workplaces. The fact that employees are already being cost effectively protected from the adverse effects of a noisy work environment through PPE will not be a defense.
Employers also need to consider what might be next on the horizon. If OSHA is going to redefine the concept of feasibility for noise abatement, will a change in the definition of feasibility for other standards be far behind? What other definitional or other changes may be in store? And will state OSHA programs follow suit?
What should employers do now?
The ramifications of this change in interpretation are so significant that, at a minimum, employers need to closely monitor these developments. Employers should also give serious consideration to submitting comments to OSHA either directly or through trade associations or both. And, employers may want to start evaluating their noise hazards now so that they are prepared for these potential changes.
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