Employment Law Report
OSHA Withdraws Proposed “Interpretation” Regarding its Noise Standard
On January 19, 2011, the U.S. Occupational Safety and Health Administration announced that it was withdrawing its proposed interpretation titled “Interpretation of OSHA’s Provisions for Feasible Administrative or Engineering Controls of Occupational Noise.” The interpretation had been intended to clarify the term “feasible administrative or engineering controls” as used in OSHA’s noise standard so as to emphasize its preference for engineering and administrative controls as opposed to personal protective equipment such as ear plugs.
OSHA’s noise standard specifies that feasible administrative or engineering controls must be used to reduce noise to acceptable levels and that personal protective equipment, such as ear plugs and ear muffs, must be used only as supplements when administrative or engineering controls are not completely effective. The preference for engineering and administrative controls, although typically more expensive for the employer, as opposed to personal protective equipment, was according to OSHA consistent with the approach taken in all of its health standards and is reflective of the fact that such controls are generally more effective.
Under the agency’s current enforcement policy, however, the agency issues citations for failure to use engineering and administrative controls only when they cost less than a hearing conservation program or when use of personal protective equipment would be ineffective. Indeed, OSHA has allowed many employers for some time to rely upon a hearing conservation program, including the use of hearing protectors such as ear plugs.
The proposed interpretation was originally published in the Federal Register on Oct. 19, 2010. Prior to making the withdrawal announcement, OSHA Administrator Michaels met earlier this month with the personnel from the offices of Sen. Olympia Snowe and Sen. Joseph Lieberman, members of the Senate Committee on Small Business and Entrepreneurship, in response to a letter from the senators voicing concern over the cost of the change in enforcement emphasis and the agency’s failure to utilize the normal rule-making process. Sens. Snowe and Lieberman are also co-chairs of the Senate Task Force on Manufacturing.
In an effort, however, to address exposure to excessive noise in the workplace, OSHA also announced that it will:
–Conduct a thorough review of comments that have been submitted in response to the Federal Register notice and of any other information it receives on this issue.
–Hold a stakeholder meeting on preventing occupational hearing loss to elicit the views of employers, workers, and noise control and public health professionals.
–Consult with experts from the National Institute for Occupational Safety and Health, and the National Academy of Engineering.
–Initiate a robust outreach and compliance assistance effort to provide enhanced technical information and guidance on the many inexpensive, effective engineering controls for dangerous noise levels.