On September 11, 2019, the US Court of Appeals for the Ninth Circuit reversed the holding of the Occupational Safety and Health Review Commission and held that §1910.134(d) of the OSHA Respiratory Protection Standard requires employers to evaluate any potential respiratory hazards to (1) determine whether a respirator is required and (2) select the appropriate respirator.
The decision in Seward Ship’s Drydock interpreting §1910.134(d) of the OSHA Respiratory Protection Standard imposes the following new obligation on employers. Whenever it is reasonable to suspect over exposure of employees to contaminants such that a respirator would be necessary, employers must evaluate the respiratory hazards at the workplace to identify the contaminant and reasonably estimate employee exposure. Where the employer cannot identify the contaminant or reasonably estimate employee exposure, the employer must consider the atmosphere immediately dangerous to life or health (IDLH). The employer must then use their evaluation of the respiratory hazards at the workplace to determine whether respirators are required and in selecting the appropriate respirator.
This case was an appeal brought by the Secretary of Labor from an adverse decision of the Occupational Safety and Health Review Commission (Review Commission). Under the Review Commission’s interpretation of the Respiratory Protection Standard, §1910.134(d)(1)(iii) applied only when respirators had already been determined to be necessary. Thus, under the old rule, a citation could be issued by OSHA for failure to select and use a required respirator but not for failure to evaluate the need for a respirator.