Just a little more than one month ago, I told you about the Occupational Safety and Health Administration’s proposal to revise their noise protection standards, lowering the threshold for requiring employers to first implement ‘feasible engineering and administrative controls’ before permitting them to have their employees wear personal protective equipment (PPE) for hearing protection.

A few weeks ago, OSHA reversed course and withdrew those proposed regulations – coincidentally or not a day before President Barack Obama signed an Executive Order which required federal agencies to review their regulations in order to ascertain which ones could be changed – or even eliminated – as a way of generating economic growth and new jobs in this challenging economy.

Of course, OSHA denied any such connection between the two actions, and rather than cite to the weight of any comments they received following the proposal of the regulations, they instead attributed their change of heart to a decision where they would instead enforce existing hearing standards more consistently with other, similar standards.  Whatever that means.

While only OSHA really knows why they decided to go back to the old method, the news that the agency withdrew their proposal doesn’t mean employers can necessarily relax.  Employers should be consistently striving to ensure their workplaces are engineered in such a way so as to eliminate the risk of hearing damage for their employees anyway.  In fact, there’s nothing to stop OSHA from more zealously enforcing their existing standards and taking a stricter interpretation of the controls they feel employers do need to implement in this regard.

In that sense, employers may not be hearing the message, even though they’re listening.

Still, until we have the chance to actually confirm that OSHA will be taking a new approach in the way they interpret their existing regulations, the reality is that employers are once again in the same legal boat on hearing protection they were in before this proposal.  In other words, if they are unable to implement engineering controls, they are generally permitted to let their employees use earplugs or wear earmuffs as a way of meeting their obligations under current general industry and construction standards to preserve their employees’ hearing, so long as the protection is effective.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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