Outside the front door of the US Chamber of Commerce in Washington today there was a small group of demonstrators, one holding a sign that said “Lobbyists are hazardous to workers’ safety.” 

Really? 

When I got back to the office I opened a newsletter and found an article about the lobbying campaign from a coalition called Friends of NIOSH to preserve part of that agency’s funding.  A few pages later there was an item about Public Citizen’s call for legislation to require government agencies to reject bids from companies with bad safety and health records.  Now let’s see … organized efforts to get a legislative result are called lobbying, right? 

Sure, there are businesses and interest groups that lobby for less safety and health regulation.  The Chamber occupies a big building a block from the White House, and it’s surely full of lobbyists.  But just a block away there’s an equally big building that’s just as full of lobbyists – the headquarters of the AFL-CIO.  And there are plenty of other groups out there — ISEA being one of them – that lobby for safety and health in the workplace.  Call it advocacy, lobbying, whatever – it’s all the same, and it’s an important part of the deliberative process of government.

Just don’t call it hazardous.

On November 3, 2011, senior managers from OSHA met with industry stakeholders to discuss occupational hearing loss and strategies for balancing regulation with economic growth.  Deputy Assistant Secretary for OSHA Richard Fairfax emphasized the need for flexibility between programs that use engineering and administrative controls to achieve this goal. Hearing conservation programs, fit-testing, feasible engineering upgrades, implementation of new technologies, education, training, and outreach emerged as leading best practices favored by the stakeholder representatives.

Representatives from ISEA, Honeywell, and 3M, discussed emerging PPE technologies that provide cost-effective solutions for employers. In-ear dosimetry allows for real-time exposure monitoring under the hearing protector, which documents noise at the eardrum without relying on rating methods or estimates of protection. Innovation in intelligent communication technology enhances worker safety by blocking noise, while allowing voice and warning signals to be heard more naturally. Improved hearing protectors allow speech frequencies to be discerned with less distortion and helps combat worker isolation and overprotection in the workplace. These advances in technical function and ease of use will help employers monitor exposure and allow workers to maximize the noise reduction capabilities of their hearing protection devices.

In addition to technical advances in hearing protection devices, ISEA, 3M and Honeywell representatives also advocated for consistent training on the use and selection of hearing protectors, and new OSHA regulations setting the permissible exposure limit for hazardous noise at 85 dBA (it is currently 90 dBA) and lowering the exchange rate to 3 dBA from 5 dBA.

When stakeholders weighed in on a draft plan from the National Personal Protective Technology Lab (NPPTL) to address certification of PPE (as we reported last month), the agency made some adjustments.  Its latest draft strategy, prepared for an internal government review and shared with ISEA and other stakeholders, backs off the risk-based certification scheme envisioned by the Institute of Medicine committee, in favor of developing a conformity assessment framework that addresses worker needs while making the best use of institutions and processes already in place. 

Given the reality that resources will not be available to expand government’s certification role, NPPTL believes there may be support for development of a conformity assessent voluntary standard and/or an expanded audit and oversight function within NIOSH.   Defining the shape and scope of this new framework would be driven by some key questions concerning public/private cooperation, coordination among federal agencies, marketplace realities and where independent conformity assessmment might be needed.  To get there, the lab plans to establish a working group to develop the framework over the next couple of years, including a serious of public meetings.  Another year would be devoted to working with standards developing organizations to translate the framework into a workable conformity assessment tool.

Obviously, this makes a lot of sense to ISEA.  Moving forward in the direction suggested by he IOM committee would result in expansion of third-party certification to almost all PPE.  While this may still sound good in theory, it fails to consider all the elements of the US system that provide high quality protective equipment without mandatory certification.  ISEA’s Standards Policy and Planning Committee has been working on a voluntary standard for conformity assessment, and by the time time NPPTL completes its framework assessment we hope to be ready with a document that meets the need.

The National Personal Protective Technology Lab (NPPTL) at NIOSH is embarking on a multi-year study to address the recommendations of the Institute of Medicine (IOM) Committee on the Certification of Personal Protective Technologies (PPT). 

 Now that we have all those acronyms identified, let’s look at the task the lab has set for itself, and what some prominent stakeholders think about it.

 As we’ve reported, the IOM committee concluded that worker safety and health would be improved if the US set up a system of certification of PPT.  It would be “risk-based” – that is, the higher the risk, the higher the level of testing and certification.  For all but the lowest risk hazards, the committee recommends third-party testing and certification.  NIOSH NPPTL asked for – and paid for – the report, so now it has to at least respond.

Initially, the lab wanted to bring in stakeholders and form a working group to conduct an 18-month study and produce a roadmap for implementation.  It backed off this idea, and announced in May that it would conduct the study on its own, consulting with stakeholders all along the way.  It asked for comments from interested parties by July 1.  It got seven, and has posted them to its Web site.  Aside from one brief note from “usacitizen1” questioning why CDC is now involved in something that NIOSH was doing before (possibly unaware that NIOSH is part of CDC?), responses are from folks whose voices have been heard before in this debate.

In ISEA’s comments, we wrote that the IOM report failed to fully consider the realities of the PPE market and regulatory structure in the US, proposing an academic solution in search of a problem.  ISEA feels that NIOSH should not proceed to develop any system that would expand certification until it has determined two things:  the extent to which PPE that does not meet the required performance standards is getting to users , and clear evidence that certification would produce better worker health and safety.  This view was also expressed by other commenters.  Bob Weber of 3M questioned whether there are legitimate issues with the performance of PPE in the US, and wrote that NIOSH must identify and document a problem in order to do the cost-benefit analysis required under Executive Order 13563.  Joann Kline of Kimberly-Clark Professional wrote that improvements in worker safety projected from a certification program need to be expressed incrementally – in other words, don’t look at whether certified PPE will be better than nothing, but whether it will be better than what is already being used.  PPE consultants Jeff and Grace Stull also noted that there is nothing in the IOM report that establishes the need for additional certification.

3M’s Weber questioned whether NIOSH has the resources to expand its conformity assessment efforts.  NIOSH is already struggling to meet intended timeline for respirator approvals, he noted, and new tasks taken on by NPPTL could detract from this existing program, which is a legislative mandate.  Stull went even further, agreeing that NIOSH does not have the resources, and questioning whether NIOSH has legislative authority to carry out the IOM recommendation.  He proposed that NIOSH should get out of the respirator testing business, turning it over to private labs and retaining a supervisory, audit and enforcement role.  A dissenting view came from Rich Duffy of the International Association of Fire Fighters, who proposed that NIOSH should take over certification of all protective clothing and equipment.  He acknowledged the agency’s resource constraints, which he blamed for what he called its questionable effectiveness, but said it needs to be fully funded.  Duffy clearly feels that the IOM report was flawed, but rather than suggesting overreach, he feels that its recommendations do not go far enough. 

All the commenters except Duffy urged NIOSH to look at alternative approaches to the risk-based structure outlined by the IOM committee.  We noted that ISEA is working on a voluntary standard for conformity assessment that would offer users and regulators a wider range of conformity assessment choices, and could be incorporated into the existing regulatory structure without major changes to laws or regulations.  Weber said that NIOSH should rethink the risk-based process, because risk drives the selection of PPE, but not the conformity assessment.  Stull said that NIOSH should investigate ways in which manufacturers could be induced to follow existing standards, and end users induced to purchase products that meet these standards.  Kline also suggested that the agency should focus its efforts on going after the “bad actors,” and not imposing a certification system that she predicted would significantly decrease the available variety of PPE.  Since many user injuries arise from improper use of PPE, poor fit, or failure to use any PPE, she said gains from elimination of substandard products could be offset by degradation in fit from fewer devices, and reduced use of PPE across the board.

Duffy, on the other hand, cited the General Duty Clause as giving OSHA the authority to demand that certified PPE be used.  He wrote that OSHA should use this regulation to force compliance with existing standards by “requiring employers to use PPE that meets the latest, most relevant standards in that particular industry.”  The role of NIOSH should be to “identify the standards and PPE that can be enforced through this process, and certify that these items meet established standards, specifically those adopted by the federal government.”  This appears to be a novel interpretation of OSHA’s authority, especially as the agency has always maintained that it must cite specific editions of the standards it incorporates by reference, not simply the “latest, most relevant standards.”

Other than Duffy, who represents firefighters, there hasn’t been much interest in this issue from employers and users.  Why?  It could be that they believe the PPE they’re buying works just fine.  If they are aware of the standards that the PPE is supposed to meet, they assume that their distributor is not going to sell them equipment that hasn’t been tested.  After all, there are far more stories of people being saved by their hard hats, safety glasses or fall protection harnesses than of people injured because of PPE failure.  It could be that they think their PPE is already “ANSI approved,” or “OSHA approved,” though there’s no such thing.  All this suggests that the system is working pretty well, and that the federal government should tread lightly, understanding and respecting the role of the responsible manufacturers who supply most of the PPE used in this country.

Residential construction has been exempt from fall protection regulations since the Clinton Administration, but OSHA reversed course last year and announced it is issuing a new compliance directive mandating that ”employees working six feet or more above lower levels use guardrails, safety nets, or personal fall arrest systems.”  It defines personal fall arrest system to include a full body harness, deceleration device, lanyard and anchor point.  Alternatives such as restraint systems or warning lines may be used in certain circumstances, and OSHA will exempt employers from the requirements if they can document why fall protection would be infeasible or create a greater hazard.

OSHA has published a guidance document as part of a new Residential  Fall Protection page on its Web site.  It will start enforcing the new compliance directive June 16.

UPDATE on June 9.  OSHA announced today that it is allowing a three-month phase-in period to comply with this regulation.  From June 16 to September 15, if the employer is in full compliance with the old directive, OSHA won’t cite, but will issue a hazard alert letter.  This letter will inform the employer of feasible methods to comply with the fall protection standard or implement a written fall protection plan. If an employer fails to implement the fall protection measures outlined in a hazard alert letter, and during a subsequent inspection of one of the employer’s workplaces OSHA finds violations involving the same hazards, the Area Office shall issue appropriate citations.   Read the details.