Audit, Compliance and Risk Blog

Appeals Court Affirms OSHA’s Approach to Workplace Air Testing and Respiratory Protection

Posted by Jon Elliott on Tue, Feb 11, 2020

WelderThe Occupational Safety and Health Administration (OSHA) requires employers to evaluate whether air quality in their workplaces requires respiratory protection for workers, and to establish comprehensive evaluation and respiratory protection programs where necessary. (I wrote about recent revisions here). Late last year, a federal appeals court upheld OSHA’s approaches to workplace testing requirements under the Respiratory Protection Standard (Standard) (Secretary of Labor v. Seward Ship's Drydock, Inc.).

 When Does OSHA Require Employers to Test Workplace Air?

The Respiratory Protection Standard requires employers to ensure that workplace air is safe for employees to breathe.  The case just decided centered around the meaning of the first step that the Standard requires employers to take:

“The employer shall identify and evaluate the respiratory hazard(s) in the workplace; this evaluation shall include a reasonable estimate of employee exposures to respiratory hazard(s) and an identification of the contaminant's chemical state and physical form. Where the employer cannot identify or reasonably estimate the employee exposure, the employer shall consider the atmosphere to be IDLH [Immediately Dangerous to Life or Health].” (29 CFR 1910.134(d)(1)(iii)) (emphasis added)

This requirement is extremely open-ended. Potential contaminants might be chemical or biological, and might appear as harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors. The Standard does not specify contaminants to test for, nor the tests to use – although readers should remember that OSHA’s Airborne Contaminant Standard addresses hundreds of common contaminants (I discussed that standard here). 

As cited in the court decision, since at least 1998 OSHA inspection and enforcement guidance has interpreted and applied the quoted requirement to mean that employers must evaluate a workplace for respiratory hazards whenever the situation provides the “potential for an employee overexposure” to any airborne contamination that might pose a health hazard.

What Happened in This Case

Seward Ship’s Drydock, Inc. (“Seward”) was a marine vessel repair business located in Seward, Alaska. It performed both “drydock” repairs, where the vessel is out of the water, and “dockside” repairs, where the vessel is floating in the water. In 2009 Seward was conducting repairs onboard the Paula Lee, a deck barge. Seward employees performed welding in the barge’s “voids” (compartments that can be left empty to provide buoyancy or can be filled with water to provide ballast). Seward hired a consultant to test the atmosphere in each void for oxygen levels, flammable gases and airborne toxics before welding operations. The consultant certified the spaces as safe to commence work. However, no testing was conducted for fumes from the welding operations themselves, even in circumstances where welders returned to particular voids more than once to work.

After two welders complained to OSHA about being told to work in air that was “thick” with welding fumes, OSHA inspected and observed welders working in a void without adequate ventilation and with visible welding fumes. OSHA pulled samples, and fitted the welders with personal monitoring devices. Results showed iron oxide concentrations close to the applicable OSHA airborne standard (9.1 milligrams per cubic meter over an 8 hour shift, compared to a permissible exposure limit (PEL) of 10).

OSHA cited Seward for 13 violations, including a violation of the provision I quoted above. That citation alleged that the failure to test for welding fumes left employee welders to face potentially hazardous exposures. After a hearing, the administrative law judge (ALJ) found that Seward’s pre-welding testing met the standard after the consultant certified the voids to be safe for welding work, and that respirators are only required after testing shows that the workplace atmosphere is hazardous. OSHA appealed the ALJ’s decision to the Occupational Safety and Health Review Commission (Commission), arguing that Seward’s failure to confirm that the air was safe had violated the standard. The Commission affirmed the ALJ’s ruling, finding that the regulatory section quoted above “… requires [OSHA] to show there was a significant risk of harm necessitating the use of respirators.” OSHA then appealed to the federal Ninth Circuit Court of Appeals.

What Has the Ninth Circuit Decided?

The Circuit Court decision recounts the history of the case, and focuses on the meaning of section 1910.134(d)(1)(iii). The court interprets the word “hazard” to mean a potential­ for harm, the existence of which is sufficient to trigger the employer’s responsibility to comply with the Respiratory Protection Standard. The Court ruled that the highlighted language above “requires employers to both ‘identify and evaluate the respiratory hazard(s) in the workplace … [and that] … the word ‘identify’ indicates that, contrary to the Commission’s analysis, the regulation applies even where an employer does not already know of hazards in the workplace.” Accordingly, the Court ruled that “29 C.F.R. § 1910.134(d)(1)(iii) requires an evaluation of which, if any, respiratory hazards exist in a workplace where there is a potential for overexposure of employees.

Now What?

The Ninth Circuit ruling removes any doubt that the Respiratory Protection Standard applies as a protective and preventive responsibility when there is reasonable potential that a hazardous situation will exist, and not only after­ monitoring or testing shows that a hazard exists. I don’t know why the decision doesn’t note the obvious fact that air safe to begin welding might not stay safe after welding has release metal-bearing fumes and changed the nature of the workplace’s air. Employers and their health and safety personnel should take this decision as a reminder to view responsibilities for workplace air quality expansively.

Self-Assessment Checklist 

  • Has the organization evaluated its workplaces to identify possible air contamination that can be hazardous to workers?

  • If so, which contaminants have been evaluated, and which testing methods were applied?

  • Has the organization identified any workplaces that do present workplace air contamination hazards?

  • If so, has the organization eliminated these hazards in all such workplaces?

  • If any workplaces contain air hazards that cannot feasibly be eliminated, has the organization implemented respiratory protection programs, compliant with OSHA requirements, covering all affected employees?

Where Can I Go For More Information? 

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. 

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About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years. 

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at:

photo credit: formfabrik 5F291C09-64B3-4E07-BED5-DACC38FD878D via photopin

Tags: Business & Legal, Employer Best Practices, Health & Safety, OSHA, Employee Rights