OSHA Noise Exposure Proposed Interpretation

November 5, 2010 By Andrew R. Kaake, Robert A. Dimling

Recently, the Occupational Safety and Health Administration announced its intent to take a much broader and more aggressive approach in applying and enforcing the agency's noise exposure standards. Under these standards, employers with employees exposed at or above certain threshold noise levels must use "feasible" administrative and engineering controls to reduce noise to acceptable levels. OSHA intends to alter its long-standing interpretation of when administrative and engineering controls are "feasible." As a result of this broader interpretation, more employers would now be required to implement potentially costly administrative and engineering controls. 

Administrative controls involve limiting how long an employee can work in an area with high noise levels; engineering controls involve physical barriers or equipment modifications that reduce the decibel level of workplace noise. Employers are required to implement such controls when they are "feasible." Employees must wear personal protective equipment such as ear plugs when administrative and engineering controls are not completely effective. 

For years, OSHA has considered administrative and engineering controls to be "feasible" only when such controls are less expensive than an alternative hearing conservation program that utilizes personal hearing protection equipment. Thus, OSHA has used a cost-benefit test in determining the feasibility of administrative and engineering controls.

Under the proposal, however, OSHA would now interpret "feasible" as meaning "capable of being done." OSHA would disregard whether hearing protectors are effective and whether administrative and engineering controls would be more expensive than a hearing conservation program. Instead, OSHA would consider administrative and engineering controls "feasible" as long as their costs do not threaten an employer's ability to stay in business

That is, even if employees are protected by personal hearing protectors and administrative and engineering controls would be more expensive than a hearing conservation program, OSHA may still require administrative and engineering controls. Employers should be concerned that OSHA's new interpretation could greatly expand the obligation to implement costly administrative and engineering controls. 

OSHA has solicited comments on the proposed interpretation which can be submitted at http://www.regulations.gov/ until December 20, 2010. The U.S. Chamber of Commerce has already called for a "strong response" from employers.

For questions regarding this or any other OSHA matter, please contact Bob Dimling, Andy Kaake, or any other attorney in Frost Brown Todd's Labor and Employment Practice Group.

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