Failure to Provide Worksite Respirator

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

We have previously discussed Occupational Safety and Health Administration (OSHA) safety rules that require employers to take steps to keep workers safe.

This episode discusses the rules about respiratory protection where employees might be exposed to airborne contaminants. It is prompted by a call from a client who started a new job requiring him to go into an enclosed grain storage tank. He was sent into the tank without a mask or respirator, and he soon could not breathe. He passed out and required emergency transport to a hospital.

When must employers provide respirators for employees?

The National Institute for Occupational Safety and Health (NIOSH) explains how employers are to deal with worksite hazards.

First, hazards must be eliminated if at all possible. Meaning the employer should physically remove the hazard from the workplace.

Second, if the hazard cannot be removed, the employer should ask, can a safe substitute for the danger be used in its place?

These two rules do not effectively deal with sending an employee into a grain storage bin. While I suppose fans could be used to physically remove the dust and other trapped gases in the bin, it would not be 100% effective. And, there really is no way to pump new clean, fresh air into the bin in such a way as to totally eliminate the dust, odors, and gases in the tank.

So what next must an employer do?

The third option is to use engineering controls to isolate people working in the bin from the hazard, in this case, bad air. How could this be done?

Well, I suppose you could devise a remote camera-controlled robotic device to go into the bin. In doing so, you would isolate the humans. Obviously, this is something you would do in, say, a nuclear reactor. Keep the people out, and send in robots. Robotic controls would work well if the employee works for the police force and must defuse a bomb.

But, the fourth fallback position is to provide personal protective equipment.

In the case of a grain bin, personal protective equipment or PPE would work best. So the employer should have had a respiratory protection program to ensure that all employees are adequately protected from respiratory hazards.

And, in fact, according to 29 Code of Federal Regulations (CFR) 1910.134, employers must create and maintain an individualized, written respiratory program if their employees use respirators. Also, employers must supply NIOSH certified respirators for their employees.

But, does the employer meet its obligation by simply having masks available.

Not likely. The employer should implement a written respiratory protection program with worksite-specific procedures explaining proper respirator use. A trained program administrator must lead the program.

Minimum respiratory requirements for all contaminants can be found in 29 CFR 1910.134. Substance-specific standards (for substances like asbestos and lead) are found in 29 CFR Subpart Z.

The employer must follow federal, state, and local respiratory protection regulations in each specific case.

In some situations, a filtering facepiece (Dust Mask) is adequate. In other cases, a negative-pressure respirator is required. In still different situations, a powered air-purifying respirator might be needed.

An employer should provide a necessary respirator based on the hazard and factors that might hinder respirator performance and reliability.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”