OSHA Hazard Assessment: To What Extent Can a Multi-Facility Employer Rely on Hazard Assessments from One Facility in Another, Similar Facility?

OSHA regulations require an employer to conduct a hazard assessment to determine if hazards are present, or likely to be present, that necessitate the use of Personal Protection Equipment (“PPE”). 29 CFR § 1910.132(d)(1). It is common sense to think that an employer whose operations are similar across multiple facilities will rely on its hazard assessments in one facility when making decisions as to the safety practices that are necessary to protect its employees in another, similar facility.  
                    
However, a 2015 decision by the Occupational Safety and Health Review Commission (“OSHRC”) could discourage employers from making such common sense conclusions. In 2008, OSHA issued a citation to a Wal-Mart distribution facility for failing to conduct a PPE hazard assessment as specified under 29 CFR § 1910.132(d)(1).[1] Wal-Mart operated 120 distribution facilities that were physically similar in design and operation. The company relied on a global hazard assessment that it had completed at only one of its facilitates for its hazard assessment conclusions with respect to all of its facilities. OSHRC ultimately affirmed OSHA’s initial citation and decision and ruled that an employer could not apply the findings from one hazard assessment at one location to other facility locations without confirming that the other locations were identical enough to warrant such application.[2]

An employer could just decide that the Wal-Mart decision means that it has to conduct entirely independent hazard assessments at each of its facilities. This, however, would cause that employer to lose an opportunity to create a safer workplace for all employees by cross-fertilizing the development of its safety practices. When one digs deeper into the Wal-Mart decision, it is clear OSHRC did not say that an employer always has to start from scratch. Rather, OSHRC said that a hazard assessment in one facility is a good start, but it is not all that is necessary. Rather, that initial hazard assessment must be combined with an equivalency investigation in each of the facilities where it is to be applied before determining if it can qualify as a hazard assessment for all locations. An equivalency investigation takes into consideration both the physical layout of the facilities and the work practices and conditions at each facility that contribute to an employee’s exposure to the hazard.[3] To do this, your safety team must observe each facility where the hazard assessment is to be applied, verify that there are no process or equipment differences or significant differences in personnel job functions and training, and that all factors, such as the use of ventilation systems, are operating in substantially the same way across your facilities. During observations, consider some of the following questions:

• Are employees operating the machinery in the same way across all your facilities—where are they standing, what kind of materials and tools are they working with, and how does their immediate environment affect the hazard?
• Are the ventilation systems operating in the same way? Where are the vents, ducts, and hoods positioned? What kind of filtration systems are in use?
• Are the employees exposed to excessive noise or vibration that may not be present in the initial assessed location?
• Is there potential for exposure to toxic/hazardous substances, harmful radiation, or electrical hazards or are there other compounding concerns that were not present at the initial facility?

As always, employees performing the tasks for which the analysis is being conducted should provide input and insight to the hazard identification process, in this case as to additional factors that might need to be considered.

The beauty of this approach is that the focus of the hazard assessment can turn to the work conditions that positively or negatively affect the hazard. By approaching it in this fashion, an employer may learn of the “non-equivalencies” in work conditions that may be unnecessarily increasing workplace hazards and find cost-effective means to control the work environment factors in a way that reduces risk to employees.

This approach also has a place in the context of code-specific air contaminant hazard assessments. When you start to dig into certain processes and complex work practices that require large amounts of data, it may be possible to rely on data from other, equivalent facilities. For example, OSHA Standard 1910.1027(d)(2)(iii) for cadmium air contaminant exposures allows an employer to utilize objective data instead of implementing initial monitoring across all of its facilities in certain situations. Thus, if you have a possible cadmium exposure from a process used across multiple facilities, you may be able to collect comprehensive, statistically sound data in one facility and rely on that as the “objective data” from which to reach hazard assessment conclusions in another facility. As with the PPE “equivalency investigation,” you should focus on what factors affect exposure: time the employee spends exposed, ventilation, composition of materials being worked on, etc. To the extent those factors are the same across all facilities, evidence at one facility that the Permissible Exposure Limit (“PEL”) is not exceeded can be a good indicator that it is not exceeded elsewhere. Conversely, evidence that the PEL is exceeded means that this is a hazard you should address across all of your facilities where the circumstances of exposure are similar. Further, as above, you may learn valuable information about the “non-equivalency” factors that could be cost-effectively altered to reduce exposure.

Beyond utilizing monitoring data from your own facilities, two of the air contaminant standards specifically allow you to utilize data collected by trade associations, manufacturers’ case studies, laboratory studies, and other research if it demonstrates, usually by means of exposure data, that meaningful exposure can or cannot occur in facilities such as yours under the exposure conditions that exist at your facility.[4] 29 CFR § 1910.1027(n)(2)(i) (cadmium standard); 29 CFR § 1910.1026(b) (chromium (VI) standard).

Don’t forget that safety regulations and information, including the conclusions of your hazard assessment, must be properly communicated in a timely manner to the affected employees. In the case of a multi-facility employer, it behooves you to also communicate those findings horizontally to all similar locations and vertically through all affected departments.