While a new year is often a time for resolutions to do something different, one thing in 2011 that is sure to remain the same from 2010 is an increased focus on regulation and enforcement by the agencies which our government has charged with enforcing labor, wage, occupational safety, and other related laws.

For instance, the comment period closed just prior to the New Year on regulations proposed by the Occupational Safety and Health Administration (OSHA) to revise its noise protection standards. Under current general industry and construction regulations – 29 C.F.R. Sections 1910.95 and 1926.52 – employers are required to implement feasible engineering and administrative controls to reduce noise and may have their employees wear personal protective equipment (PPE) such as earmuffs or earplugs as a way of helping meet that obligation.

In fact, employers have usually only been cited for violations of those regulations when the PPE has been ineffective, or when they or other administrative or engineering methods employed cost less than implementing a hearing conservation program.

Under the proposed revision of those regulations however, OSHA is putting forth a new interpretation of ‘feasible engineering and administrative controls” and, by doing so, is altering its enforcement approach. Essentially, it is lowering the threshold for requiring such controls before employers can turn to PPE to protect their employees from occupational noise exposure.

Were the regulations to take effect as proposed, the playing field would be entirely changed. Under the proposed regulations, if there are controls that simply are “achievable” or “capable of being done” – generally without regard to cost so long as they don’t threaten an employer’s ability to remain in business – an employer will have to implement those before relying on PPE.

While several questions about the proposed regulations remain for the time being – where is the line drawn from a cost standpoint between what’s ‘capable of being done’ without threatening an employer’s ability to operate is one – what is certain is that, once the regulations are reduced to final form, OSHA will be changing its modus operandi in terms of how it approaches noise exposure and hazards in the workplace.

And that’s something all employers need to listen to.

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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