OSHA Issues Final Rule Clarifying an Employers’ Duty to Provide PPE and Train Each Employee

December 15, 2008

 The rule also clarifies that each employee not provided with these measures of protection may be considered as a separate violation and penalties can be assessed accordingly. This revised language is consistent with language in other standards where citations assessed on a “per-employee” basis have been upheld.

The final rule amendments do not add new compliance obligations. Employers are not required to provide new kinds of personal protective equipment (PPE) or hazard training or use a different approach than what is already required. Additionally, employers are not required to provide PPE or training to employees not already covered by existing requirements.

“This technical correction to the PPE standard brings it in line with other OSHA safety and health standards,” Acting Assistant Secretary of Labor for OSHA Thomas Stohler said. “By making this change, those few employers who egregiously violate the OSHA PPE standard can be held fully accountable for violations affecting each employee who is not provided proper PPE. This kind of vigorous enforcement is a vital component of OSHA’s balanced approach to workplace safety and health.”

The final rule becomes effective on Jan. 12, 2009, and applies to OSHA’s rules at: 29 CFR Parts 1910, 1915, 1917, 1918, and 1926.

DOL Rule Clarifies Applicability of Family Medical Leave Act


"This final rule, for the first time, gives America's military families special job-protected leave rights to care for brave service men and women who are wounded or injured, and also helps families of members of the National Guard and Reserves manage their affairs when their service member is called up for active duty," U.S. Secretary of Labor Elaine L. Chao said. "At the same time, the final rule provides needed clarity about general FMLA rights and obligations for both workers and employers."

"This common sense, balanced rule is the product of a two-year-long transparent process involving about 20,000 public comments and reflects the careful consideration of the views of FMLA's stakeholders," said Victoria A. Lipnic, assistant secretary for the DOL’s Employment Standards Administration.

Provisions in the final rule call for increased notice obligations for employers so that employees will better understand their FMLA rights, while revising the employee notice rules to minimize workplace disruptions due to unscheduled FMLA absences. The final rule also contains technical changes that reflect decisions by the U.S. Supreme Court and lower courts.

Featured final rule actions implementing the statutory expansion of FMLA for military families:

  • Military Caregiver Leave: Implements the requirement to expand FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.
  • Leave for Qualifying Exigencies for Families of National Guard and Reserves: The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs—"qualifying exigencies."


The rule defines "qualifying exigencies" as: 1) short-notice deployment, 2) military events and related activities, 3) childcare and school activities, 4) financial and legal arrangements, 5) counseling, 6) rest and recuperation, 7) post-deployment activities, and 8) additional activities where the employer and employee agree to the leave.

The updated rule contains technical changes to be consistent with the U.S. Supreme Court's decision in Ragsdale v. Wolverine World Wide Inc. The court ruled that the regulation's so-called "categorical" penalty (requiring an employer to provide 12 additional weeks of FMLA-protected leave after the employee had already taken 30 weeks of leave) was inconsistent with the statutory limit of only 12 weeks of FMLA leave and contrary to the law's remedial requirement that an employee demonstrate individual harm. The new rule removes these penalties and clarifies that if an employee suffers individual harm because the employer did not follow the notification rules, the employer may be liable.

  • Waiver of Rights: The department has finalized its longstanding position that employees may voluntarily settle their FMLA claims without court or departmental approval. However, prospective waivers of FMLA rights will continue to be prohibited.
  • Serious Health Condition: While the rule retains the six individual definitions of "serious health condition," it adds guidance on some regulatory matters. First, it clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. Second, it defines "periodic visits to a health care provider" for chronic serious health conditions as at least two visits to a health care provider per year.
  • Light Duty: At least two courts have held that an employee uses up his or her 12-week FMLA leave while on a "light duty" assignment. Under the final rule, time spent in "light duty" work does not count against an employee's FMLA leave entitlement, and the employee's right to job restoration is held in abeyance during the light-duty period. If an employee is voluntarily doing light-duty work, he or she is not on FMLA leave.
  • Perfect Attendance Awards: The final rule changes how perfect attendance awards are treated to allow employers to deny a "perfect attendance" award to an employee who does not have perfect attendance because he or she took FMLA leave—but only if the employer treats employees taking non-FMLA leave in an identical way.
  • Employer Notice Obligations: The final rule consolidates all employer notice requirements into a "one stop" section of the regulations to clear up some conflicting provisions and time periods. Further, the final rule clarifies and strengthens the employer notice requirements to employees in order that employers will better inform employees about their FMLA rights and obligations, and allow for a smoother exchange of information between employers and employees.
  • Employee Notice: The final rule modifies the current provision that had been interpreted to allow some employees to notify their employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner. Under the final rule, the employee must follow the employer's normal and customary call-in procedures, unless there are unusual circumstances.
  • Medical Certification Process (Content and Clarification): The final rule, which is the result of significant stakeholder feedback (including a September 2007 meeting at the department on "medical certifications"), recognizes the advent of the Health Insurance Portability and Accountability Act (HIPAA) and the applicability of HIPAA's medical privacy rule to communications between employers and employees' health care providers. Responding to concerns about medical privacy, the rule adds a requirement that limits who may contact the health care provider and bans an employee's direct supervisor from making the contact.



Promoting Safe Driving Practices Promotes the Bottom Line for All Employers

Motor vehicle crashes cost employers $60 billion annually in medical care, legal expenses, property damage, and lost productivity. They drive up the cost of benefits such as workers’ compensation, Social Security, and private health and disability insurance. In addition, they increase the company overhead involved in administering these programs.

The average crash costs an employer $16,500. When a worker has an on-the-job crash that results in an injury, the cost to their employer is estimated to be $74,000. Costs can exceed $500,000 when a fatality is involved.

The real tragedy is that these crashes are largely preventable. Recognizing the opportunity that employers have to save lives, a growing number of employers have established traffic safety programs in their companies. No organization can afford to ignore a major problem that has such a serious impact on both their personnel and the company budget.

Employees are an employer’s most valuable assets. Workplace driver safety programs not only make good business sense but also are a good employee relations tool, demonstrating that employers care about their employees.

This booklet outlines ten steps for building a driver safety program in your workplace. These steps will be useful to any organization regardless of its size, type of traffic encountered, number of vehicles involved, or whether employees drive company or personal vehicles for work purposes. Also included are real-life examples of successful safety programs, key traffic safety issues to address in the workplace, instructions for calculating your organization’s loss from motor vehicle crashes, and a list of resources to help you fine-tune your driver safety program.

Requirements for Personnel Trained in First Aid/CPR at Jobsites

If an OSHA inspector visited your jobsite, would you meet the requirements for having adequate personnel trained in first aid/CPR? Do you know if employees are supposed to be CPR certified? If so, do you know how many per jobsite are required to be certified? 
OSHA’s standard for first-aid training in general industry, 29 CFR 1910.151(b), provides that, “In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. Adequate first-aid supplies must be readily available.”

For the construction industry, 29 CFR 1926.50(c) provides that, “In the absence of an infirmary clinic, hospital, or physician, that is reasonably accessible in terms of time and distance to the worksite, which is available for the treatment of injured employees, a person who has a valid certificate in first-aid training from the U.S. Bureau of Mines, the American Red Cross, or equivalent training that can be verified by documentary evidence, shall be available at the worksite to render first aid.”

The primary requirement addressed by these standards is that an employer must ensure prompt first-aid treatment for injured employees, either by providing for the availability of a trained first-aid provider at the worksite, or by ensuring that emergency treatment services are within reasonable proximity of the worksite. The basic purpose of these standards is to assure that adequate first aid is available in the critical minutes between the occurrence of an injury and the availability of physician or hospital care for the injured employee.

OSHA’s letter of interpretation includes additional information related to serious injuries, such as those involving stopped breathing, cardiac arrest, or uncontrolled bleeding, where first-aid treatment must be provided within the first few minutes to avoid permanent medical impairment or death. In workplaces where serious accidents such as those involving falls, suffocation, electrocution, or amputation are possible, emergency medical services must be available within 3-4 minutes if there is no employee on the site who is trained to render first aid.

The employer is required to make provisions for prompt medical attention in case of serious injury prior to commencement of a project. In the absence of an infirmary clinic, hospital, or physician that is reasonably accessible in terms of time and proximity to the worksite, the employer must ensure a person who has been trained and has a valid certificate in first-aid training is available at the worksite to provide immediate care. In addition, the employer is required to provide documentary evidence of the training.

While the standards do not indicate the number of personnel that should hold a valid certificate, it is recommended that the employer assess worksite needs. If there is a likelihood of multiple injuries to multiple personnel, there may be a need to train additional responders to render medical attention. For worksites that operate multiple shifts, this same provision applies. The employer is responsible for ensuring adequate resources are provided for the treatment of injured employees for all shifts in which personnel are working.

Rhode Island Contractor Faces $216,000 in OSHA Fines for Cave-in and Other Worksite Hazards

OSHA has cited John Rocchio Corp. of Smithfield, R.I., for alleged willful and serious violations of excavation safety standards at a North Kingstown, R.I., worksite. The company faces a total of $216,000 in proposed penalties.

Responding to a report of unsafe conditions at a water line installation, OSHA inspectors found two John Rocchio Corp. employees working in an 8-foot-deep excavation that lacked cave-in protection. There was neither a ladder at the excavation site nor any other safe method to exit, and a pile of excavated materials was stored at its edge. 
As a result of these conditions, OSHA issued John Rocchio Corp. three willful citations carrying $210,000 in proposed fines. OSHA defines a willful violation as one committed with plain indifference to or intentional disregard for employee safety and health.

“The sizable fines proposed here reflect the nature and severity of the cited hazards,” said Patrick Griffin, OSHA’s area director in Providence. “An unguarded excavation is always an imminent danger situation since its walls can collapse suddenly and with great force, crushing or burying workers before they can react or escape.”

The company also has been issued two serious citations, with $6,000 in fines, for allowing water to accumulate in the excavation and for failing to provide hard hats for employees exposed to overhead hazards. OSHA issues serious citations when death or serious physical harm is likely to result from hazards about which the employer knew or should have known.

The company has 15 business days from the receipt of the citations and penalties to meet with OSHA or to contest the citations and penalties with the independent Occupational Safety and Health Review Commission. This inspection was conducted by OSHA’s Providence Area Office.

Wendt Corp. Faces Additional $169,500 in OSHA Penalties for Uncorrected Hazards

The Wendt Corp., a Tonawanda, N.Y., manufacturer of automobile recycling equipment, faces an additional $169,500 in fines from OSHA for failing to fully correct hazards cited during a prior OSHA inspection.

“The severity of these fines reflects both the seriousness of the cited conditions and the importance of correcting hazards completely and expeditiously,” said Arthur Dube, OSHA’s area director in Buffalo. “Uncorrected and unaddressed hazards pose an ongoing risk to employees’ health and safety.”

In April, OSHA cited the company for 15 serious violations of safety standards at its manufacturing plant and fined the company $13,500. The company paid the fine and agreed to correct all the cited hazards. However, a June follow-up inspection by OSHA found that seven of the cited items remained uncorrected.

Specifically, the company had not: established and implemented a respiratory protection program; provided appropriate respirator training and fit-testing for industrial painters required to wear respirators during spray-painting operations; provided firefighting information for employees expected to fight incipient stage fires; provided screens or shields to protect employees working adjacent to welding operations; developed and implemented a hazard communication program; and provided hazard communication information and training to employees working with or exposed to welding fumes or hazardous chemicals.

As a result of these conditions, OSHA has issued Wendt Corp. seven failure-to-abate notices carrying $168,000 in proposed fines. OSHA also has issued the company one serious citation with a $1,500 fine for not medically evaluating employees’ fitness to wear respirators. OSHA issues serious citations when death or serious physical harm is likely to result from hazards about which the employer knew or should have known.

“One effective way that employers can address workplace hazards is to establish a safety and health management program through which employers and employees work together in a systematic and cooperative manner to evaluate, identify, and eliminate hazardous conditions in their workplace,” Dube said.

OSHA and IEC Renew Alliance That Developed Resources on the Agency’s Electrical Standard

The IEC fact sheet provides the electrical industry with a brief overview of the updates OSHA has made to this standard. It describes the revised standard’s application to electrical installations, equipment, zone classification, and entertainment venues such as carnivals, circuses, and fairs. The IEC “Arc Flash Safety” presentation focuses on hot work and arc flash hazards and addresses topics including types of electrical hazards and how to protect oneself against shock and arc flashes or blasts.

Through the Alliance renewal signed in December 2008, OSHA and IEC will continue to provide IEC members and others in the construction industry with resources to protect employees’ safety and health. The Alliance will specifically address reducing and preventing exposure to fall and arc flash hazards and electrical and motor vehicle safety issues.

“The information and tools this Alliance has developed over the past six years have provided safety and health resources to thousands of electrical industry employees,” said Acting Assistant Secretary of Labor for OSHA Thomas M. Stohler. “Working together to develop and share best practices to reduce and prevent workplace injuries is an important part of OSHA’s balanced approach to safety and health.”

Additionally, through the Alliance, IEC encouraged its chapters to work collaboratively with OSHA and, as a result, a number of the association’s chapters are implementing Alliance agreements with the agency’s regional and area offices and State Plan states to focus on safety and health issues including fall, confined space entry, toxic substances, and struck-by hazards.

“IEC is committed to the lives of the men and women in the electrical industry,” said IEC National President Steve Wiege. “Together, our Alliance will continue to foster an environment of improved safety for the nation’s electrical workforce.”

A national trade association for merit shop electrical and systems contractors, IEC represents more than 3,800 member companies and nearly 100,000 electrical employees. Founded in 1957, IEC believes in fostering a stronger economy through the services its members provide to the construction industry.

New Hampshire College and University Employees to Benefit from New OSHA Safety and Health Alliance

Providing employees at colleges and universities with training to minimize workplace hazards and enhance their safety and health are the goals of a new alliance among OSHA’s Concord Area Office, the New Hampshire Department of Environmental Services’ safety consultation program (NH-DES-CP), and the New Hampshire College and University Campus Assistance Cooperative (NHC3UA).

The alliance partners will develop and deliver job-related safety and health training and education programs for employees of NHC3UA member campuses in New Hampshire. The training will address such topics as hazard communication, hazardous energy control, electrical safety, respiratory protection, PPE, fall protection, work in confined spaces, and developing safety and health programs.

“This is an exciting opportunity to reach workers on campuses throughout the state with practical, useful, and potentially life-saving information and training,” said Rosemarie Ohar, OSHA’s area director in Concord. “This alliance will equip them with the knowledge to evaluate, identify, and eliminate a variety of work-related hazards before they result in injury or illness.”

National Handwashing Awareness Week Was December 7–13

Keeping hands clean is one of the most important ways to prevent the spread of infection and illness. Handwashing is a simple thing, and it’s the best way to prevent infection and illness.

Keeping hands clean prevents illness at home, at school, and at work. Hand hygiene practices are key prevention tools in healthcare settings, in daycare facilities, in schools and public institutions, and for the safety of our food.

In healthcare settings, handwashing can prevent potentially fatal infections from spreading from patient to patient and from patient to healthcare worker and vice-versa. The basic rule in the hospital is to cleanse hands before and after each patient contact by either washing hands or using an alcohol-based hand rub.

At home, handwashing can prevent infection and illness from spreading from family member to family member and, sometimes, throughout a community. In the home, the basic rule is to wash hands before preparing food and after handling uncooked meat and poultry; before eating; after changing diapers; after coughing, sneezing, or blowing one’s nose into a tissue; and after using the bathroom.

When washing hands with soap and water:

  • Wet your hands with clean running water and apply soap. Use warm water if it is available.

Rub hands together to make a lather and scrub all surfaces.


Continue rubbing hands for 15–20 seconds. Need a timer? Imagine singing “Happy Birthday” twice through to a friend.


Rinse hands well under running water.


Dry your hands using a paper towel or air dryer. If possible, use your paper towel to turn off the faucet.


Always use soap and water if your hands are visibly dirty.


If soap and clean water are not available, use an alcohol-based hand rub to clean your hands. Alcohol-based hand rubs significantly reduce the number of germs on skin and are fast-acting.

When using an alcohol-based hand sanitizer:

  • Apply product to the palm of one hand.
  • Rub hands together.
  • Rub the product over all surfaces of hands and fingers until hands are dry.

Unquestioned today as the most important tool in the healthcare worker’s arsenal for preventing infection, and for all of us, handwashing is the beginning step in infection control.

CDC Emphasizes That It’s Not Too Late to Vaccinate

The Centers for Disease Control (CDC) recognized December 8–14 as National Influenza Vaccination Week. The recognition of this topic highlights the importance of people continuing to receive influenza (flu) vaccinations through December, January, and beyond.

It’s not too late for families to protect themselves against the flu by getting vaccinated. Healthcare workers should get vaccinated too.

January Construction Summit Coming to Bend, Oregon

Workers and employers in Oregon’s construction industry are invited to attend a full-day conference designed to highlight safety with hands-on training on Jan. 26, 2009. “Safety—Now and Tomorrow” will be the conference’s focus.

The Department of Consumer and Business Services, Occupational Safety and Health Division (Oregon OSHA) is one of several partners presenting the Mid-Oregon Construction Safety Summit at the Riverhouse Resort and Conference Center in Bend, Ore. Oregon OSHA Administrator Michael Wood will deliver the keynote address.

The training is designed for residential and commercial construction workers. Conference attendees can choose from 16 different classes, such as fall protection and forklift safety. Some of the other conference topics include:

  • Cost of accidents
  • Electrical safety
  • Adult First Aid/CPR
  • Safety boot camp for supervisors
  • Vehicle safety
  • Work zone safety/flagging

The registration fee is $50 through Jan. 21, 2009, and will be $60 thereafter. For the First-Aid/CPR certification class, the cost is $40. 

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