OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

September 04, 2019

Mr. Todd Zey
Silver Bay Seafoods
4039 21st Ave W, Suite 201
Seattle, Washington 98199

Dear Mr. Zey:

Thank you for your letter to the Occupational Safety and Health Administration’s (OSHA) Directorate of Enforcement Programs. You requested information on the requirements of OSHA’s Occupational Noise Exposure standard, 29 CFR 1910.95. This letter constitutes OSHA’s interpretation only of the requirements herein, and may not be applicable to any questions not delineated within your original correspondence. Your specific questions are paraphrased below, followed by OSHA’s responses.

Background: In your letter, you state that your company uses mobile testing units to administer audiograms at remote locations. You also state that audiometric testing can be very difficult to administer when the employees are temporary or seasonal, and work at most for a few months. In many cases, employment lasts weeks, or even days. In addition, you state that continuous, ongoing audiometric testing year-round is not practical or realistic.

Question 1: Does the requirement in 29 CFR 1910.95(g)(5) for audiometric testing within six months of an employee’s first noise exposure at or above the action level exempt temporary or seasonal workers who are no longer employed at six months?

Response: OSHA’s noise standard at section 1910.95(g)(1) requires employers to make audiometric testing available to all employees whose exposures equal to or exceed an 8-hour time-weighted-average of 85 dB (the action level). Section 1910.95(g)(5)(i) requires that employers establish a valid baseline audiogram within six months of an employee’s first exposure at or above the action level. Section 1910.95(g)(5)(ii) goes on to provide that employers using mobile testing services to satisfy their audiometric testing obligations are allowed one year to obtain a valid baseline audiogram, provided that six months after an employee’s first exposure to workplace noise at or above the action level, the employee uses hearing protectors until the baseline audiogram is obtained.

The noise standard does not include a specific exemption from audiometric testing for temporary or seasonal workers. However, as explained in the March 8, 1983, preamble to the hearing conservation amendment final rule, OSHA included the time periods for obtaining a baseline audiogram in sections 1910.95(g)(5)(i) and (ii) to exclude seasonal and temporary workers from the audiometric testing program. OSHA stated that audiometric testing would be administratively difficult or impossible because these workers work for several employers in a season or over the course of a year. See 48 Fed. Reg. 9754.

In many cases, it is not practical nor appropriate to require audiometric testing of seasonal or temporary workers because the employee will not be employed long enough for the employer to obtain an annual audiogram against which to compare the baseline audiogram. Id. at 9755. Accordingly, if a temporary or seasonal employee’s audiometric testing is due after the employee’s term of employment has ended, the employer is not required to establish a baseline audiogram.

Please know that temporary workers are entitled to the same protections under the Occupational Safety and Health Act of 1970 (OSH Act) as all other covered employees. OSHA’s noise standard requires that all employees in general industry exposed to workplace noise at or above the 85 dBA action level be included in a hearing conservation program. For further information, please see the OSHA Temporary Worker Initiative Noise Exposure and Hearing Conservation No.9 bulletin (copy enclosed) at https://www.osha.gov/temp_workers/.

Question 2: How best should we apply the six-month and one-year time frames in section 1910.95(g)(5)(i) and (ii) to protect our employees and remain in compliance?

Response: The baseline audiogram is extremely important since it is the reference against which future audiograms are compared to determine the extent to which an employee’s hearing is deteriorating. Although not required, OSHA encourages employers to make baseline audiograms available to employees as soon as possible after an employee has been exposed to workplace noise at or above the action level. In general, baseline audiograms administered near the time of an employee’s first exposure are more accurate for determining hearing loss. An early baseline may also make it easier for temporary employees to subsequently evaluate hearing loss as they move from one employer to another.

As noted above, OSHA recognizes the practical difficulties with audiometric testing of temporary workers, especially when employers use mobile testing services, and therefore section 1910.95(g)(5)(ii) includes the additional six-month time period for conducting baseline audiograms. Please keep in mind that section 1910.95(i)(2)(ii)(A) specifically requires that employers ensure that hearing protectors are used by any employee, including temporary and seasonal employees, who has been exposed at or above the action level and has not yet had a baseline audiogram pursuant to section 1910.95(g)(5)(ii).

In situations where the cumulative noise exposure for an employee meets or exceeds the six-month or one-year timeframes, the employer must comply as provided by section 1910.95(g)(5)(i) or 1910.95(g)(5)(ii). Thus, if a temporary or seasonal employee works for the same employer during two or more separate periods of time within a 12-month period, and is exposed to noise at or above the action level during all periods of employment, the employer must make audiograms available to that temporary or seasonal worker. See OSHA’s February 8, 2005, letter of interpretation to Ms. Cindy Bloyer regarding OSHA’s re-hire policy as it relates to audiograms for further guidance (copy enclosed).

The States of Alaska and Washington, under an agreement with OSHA, operate their own occupational safety and health programs in accordance with Section 18 of the Occupational Safety and Health Act of 1970. The Alaska Occupational Safety and Health program is administered by the Alaska Department of Labor and Workforce Development. The Washington Occupational Safety and Health program is administered by the Department of Labor and Industries, Division of Occupational Safety and Health (OSH). Both OSH programs are responsible for compliance program administration, conducting enforcement inspections, adoption of standards, and operation of other related OSHA activities. State plans are required to implement regulations that are “at least as effective” as the federal standards. For specific Alaska OSHA requirements and free consultation services, we recommend that you contact:

Alaska Department of Labor and Workforce Development
Consultation and Training
1251 Muldoon Road, Suite 109
Anchorage, AK 99504
PHONE: (907) 269-4955 | TOLL FREE: (800) 656-4972
FAX: (907) 269-4950

For specific Washington OSHA requirements and free consultation services, we recommend that you contact:

Washington Department of Labor and Industries
Division of Occupational Safety and Health

7273 Linderson Way SW
Tumwater, WA 98501-5414
Mailing Address:
P.O. Box 44600
Olympia, WA 98504-4600
TOLL FREE: 1-800-4BE-SAFE or 1-800-423-7233

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA’s interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA’s website at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

 

Patrick J. Kapust, Acting Director
Directorate of Enforcement Programs

Enclosures