On Nov. 2, OSHA issued an enforcement memorandum regarding General Duty Clause (GDC) citations for respiratory hazards. The enforcement memo was prompted by the fact that OSHA has not updated its Permissible Exposure Levels (PEL) in decades. Permissible Exposure Levels are the limits set by OSHA for exposure to chemicals that are deemed to be safe and are legally enforceable. Exposures above the limits can be enforced and cited by OSHA under that regulation
There are other entities that publish Occupational Exposure Limits (OEL) such as EPA, National Institute for Occupational Safety and Health, or American Conference of Governmental Industrial Hygienists. In many instances, these OELs are lower than OSHA’s PELs as these organizations are not encumbered by the rule making process that OSHA needs to undertake to revise a PEL.
With the differences in exposure limits and the fact that OSHA’s is enforceable, there are two scenarios that that need to be addressed. They are when OSHA has not set a regulatory exposure limit for a particular chemical or the exposures are below OSHA’s regulatory Permissible Exposure Limit (“PEL”), but above another organization’s recommended occupational exposure limit (OEL) for the same chemical.
The only way for OSHA to enforce an exposure limit that is not a PEL, would be to issue a citation under the GDC. The GDC requires that employers furnish each employee with “employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm.”
According to the enforcement memo, a GDC citation cannot be based on only a measured exposure that is above an occupational exposure limit or a documented exposure to a recognized carcinogen. Instead, the new enforcement policy states that any GDC violation for airborne chemical exposures must meet a 4-element standard of proof:
- The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed.
- The hazard was recognized.
- The hazard was causing or was likely to cause death or physical harm.
- A feasible and useful method to correct the hazard was available.
All four of the above GDC standards of proof must be met before a citation is made. However, if all four elements cannot be proven, OSHA can still issue a Hazard Alert Letter (HA) if the exposure is above an OEL.