By Eric J. Conn, Head of EBG’s OSHA Practice Group
We are asked frequently by employers in the restaurant, delicatessen, and grocery industries whether OSHA’s Personal Protective Equipment (PPE) and Hand Protection regulations require the use of cut-resistant gloves for employees who work with knives. Some employers have even reported that that OSHA representatives have told them that the use of cut-resistant gloves is mandatory for employees working with knives in food service. Whether food service employees in kitchens, delicatessens, or grocery stores are required to wear cut-resistant gloves, however, is not as clear-cut as OSHA seems to think.
What is clear, is that OSHA’s PPE standards are “performance-based” standards, not “specification” standards. What that means is, the PPE standards do not proscribe specific PPE for specific circumstances. Rather, the standards defer to employers’ reasonable judgment about what PPE is necessary, and when. The applicable standard, 1910.138(a), provides:
“Employers shall select and require employees to use appropriate hand protection when employees’ hands are exposed to hazards such as those from skin absorption of harmful substances; severe cuts or lacerations; severe abrasions; punctures; chemical burns; thermal burns; and harmful temperature extremes.”
1910.138(a) is part of a series of standards regarding PPE for various parts of the body, which all stem from a general requirement at 1910.132(d)(1) that employers “shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE).” Under the plain language of these regulations, and a long history of enforcement policies and OSH Review Commission case law, if employers perform a good faith hazard assessment in connection with the work activities and equipment at their workplace, and they conclude based on that assessment that employees are not exposed to laceration/amputation hazards or that cut-resistant gloves are not appropriate PPE, and the conclusion is reasonable, then no citation should issue.
A July 3, 1995 Interpretation Letter issue by OSHA confirms this view of the PPE standards:
“What the employer is required to do is to perform a hazard assessment, and OSHA would expect that an employer will be particularly careful before considering that none of its employees in the listed occupations are exposed to hazards which necessitated the use of PPE. In litigation, of course, it would be OSHA’s burden to prove that a hazard assessment was not done. OSHA also believes that a standard of objective reasonableness is implicit in the requirement, and that accordingly, OSHA could cite for an unreasonable assessment. Again, the burden of proof would be on OSHA.”
Factors that will impact the reasonableness of an employer’s hazard assessment include:
- the existence of past injuries (i.e., look for lacerations or amputations on past OSHA 300 Logs);
- employee input (e.g., employees generally dislike gloves in this context because they sacrifice feel and dexterity of their fingers in relation to the blade); and
- the existence of other controls that protect against cuts, such as administrative safe cutting procedures and training, or engineering and equipment controls.
Last year we wrote a post on the OSHA Law Update blog regarding one very significant, recent case impacting this PPE analysis — Sec’y of Labor v. Petro Hunt LLC, OSHRCJ, No. 11-0873 (June 2, 2012). Below is an excerpt from that post that relates well to this cut-resistant glove question:
“Judge Augustine reasoned that [OSHA’s flame retardant clothing (FRC) Enforcement] Memo transformed the PPE standard from a ‘performance-based’ standard – which grants employers reasonable discretion to assess the nature of hazards at their workplaces and select appropriate PPE to address those hazards – into a specification standard – in this case, an obligation to provide a specific form of PPE (flame retardant clothing), during oil and gas operations ‘regardless of the particular circumstances that may be present at any individual facility.’ In striking down the FRC Memo, the Judge stated: ‘Complainant cannot ‘require’ anything more than what is authorized by the regulations. If [the Secretary of Labor] wishes to specifically require that FRC be worn in all instances at oil and gas operations, then she must resort to the required notice and comment rulemaking process. Otherwise, [OSHA] must independently prove in each case that Respondent had actual notice, or that a reasonable person in Respondent’s position would have recognized a hazard requiring the use of FRC. . . .’ The ALJ proceeded to vacate the citation, reasoning that OSHA failed to establish that the employer had actual notice of a need for FRC at the inspected worksite, or that a reasonable person familiar with the circumstances and industry would have recognized the existence of a flash fire hazard. To support his decision, the ALJ highlighted the following facts:
- OSHA’s failure to establish that flash fires were a hazard at the worksite;
- None of the employer’s employees suffered injuries due to fires in the previous two years; and
- The employer conducted a thorough hazard assessment, and reasonably concluded that engineering and administrative controls (methods of addressing hazards generally preferred over reliance on PPE), adequately addressed any potential fire hazard.”
Unfortunately, despite the clear performance-nature of OSHA’s PPE standards, in the current enforcement environment, OSHA appears to be applying a blanket requirement for cut-resistant gloves in the food service industry, and is actively citing employers with violations of 1910.138(a). This forces employers to make a hard choice:
- implement a policy requiring food preparation employees to don cut-resistant gloves when using knives, and make available a sufficient number of cut resistant gloves for use by employees, even in the absence of a clear hazard in your workplace; or
- rely on a reasonable PPE Hazard Assessment that concludes that cut resistant gloves are not required, but face potential citations.
If you elect to not require cut-resistant gloves, take great care to detail in your PPE Hazard Assessment the reasons you believe your employees are not exposed to cut hazards and/or why cut-resistant gloves may create a greater hazard (e.g., because of the decrease in feel/dexterity, food safety concerns, etc.).