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• Standard Number: 1910.95

March 26, 1996

The Honorable Tim Hutchinson
U.S. House of Representatives
Washington, DC 20515-0403

Dear Congressman Hutchinson:

This is in response to your letter of August 24, 1995, written on behalf of your constituent, Mr. Thom Hanson, of Hudson Foods, Inc., and addressed to Secretary of Labor, Robert B. Reich. Mr. Hanson is concerned that the Occupational Safety and Health Administration (OSHA) requirement under the Occupational Noise Exposure Standard (29 CFR 1910.95) to replace its employees' hearing protectors at no cost to the employees is unreasonable for his company. Please accept my apology for the delay in this reply.

You stated in your letter that Hudson Foods replaces hearing protectors for its employees at no cost to them only if they return the damaged ones. If a hearing protector is not returned or is determined to be deliberately damaged, Hudson charges the employee the actual cost of the protector. Mr. Hanson states that he has been informed this policy is in violation of paragraph 29 CFR 1910.95(i)(1) of the Occupational Noise Exposure standard which requires:

Employers shall make hearing protectors available to all employees exposed to an 8-hour time-weighted average of 85 decibels or greater at no cost to the employees. Hearing protectors shall be replaced as necessary.

As the regulation states, employers are required to initially provide required hearing protection to affected employees, and hearing protectors must also be replaced as necessary. This latter requirement primarily relates to normal wear and tear, but it could also include situations where the nature of the workplace or the nature of an employee's duties makes some accidental loss of hearing protectors reasonably predictable.

On the other hand, OSHA would in no way condone either the reckless or deliberate damaging or loss of hearing protectors by an employee. This type of conduct can and should be dealt with by the employer through counseling and a disciplinary program. In addition, the imposition of discipline based on the loss of a hearing protector should be limited to situations where there is a clear indication of misconduct or recklessness on the part of the employee. As previously noted, a certain degree of loss through misplacement, particularly of ear plugs, should be expected. A disciplinary scheme may not be designed or administered in such a way that a reasonable employee might be discouraged from using hearing protectors out of fear of losing or damaging them. An employer policy which had this effect would be working counter to the very intent of the regulation.

If the employer complies with the following requirements of the Occupational Noise Exposure standard, employee loss of his/her hearing protectors on the job should be significantly minimized:

Ensure that employees wear their hearing protectors - 1910.95(i)(2);


Provide training in the use and care of all hearing protectors provided to employees - 1910.95(i)(4);


Supervise the correct use of all hearing protectors - 1910.95(i)(5), and;


Ensure that each employee is informed of instructions on the use and care of hearing protectors - 1910.95(k)(3)(ii).


One possible solution that Mr. Hanson may find helpful for employees who are losing hearing protectors on work or lunch breaks or are inadvertently taking them home would be to designate a centralized storage site to place their hearing protectors when not worn. Hopefully, Mr. Hanson can identify other approaches in his workplace that minimize loss of hearing protectors, ensure their proper use, and effectively protect workers' hearing.

We appreciate the opportunity to clarify this matter for you. If you have further questions, please contact OSHA's Office of Health Compliance Assistance at 202 219-8036.

Sincerely,



Joseph A. Dear
Assistant Secretary




August 24, 1995

The Honorable Robert B. Reich
Secretary of Labor
The Department of Labor
200 Constitution Avenue, NW.
Washington, DC 20210

Dear Mr. Secretary:

Please find enclosed a copy of a letter I received from one of my constituents regarding the Occupational Safety and Health Administration's (OSHA's) Hearing Conservation Standard (29 CFR 1910.95).

As is indicated in the letter, Hudson Foods currently has a very successful hearing conservation program. In connection with this program, Hudson Foods has adopted a policy which appears to be very reasonable. As is required by the Department of Labor, Hudson Foods provides all of its associates with hearing protection equipment free of charge and replaces this equipment, as deemed necessary. The replacement of the protection equipment is also provided free of charge, unless the equipment is not returned. The basis for this policy is simply to prevent waste created by associates who may lose their issued equipment.

According to Hudson Foods, they have been informed by OSHA that this is a violation of the Hearing Conservation Standard. While I certainly understand and support the Department's position that all employees should be provided the appropriate personal protective equipment free of charge, I do not believe it was the Department's intention to create a policy that indirectly promotes waste in the workplace.

I would appreciate you looking into this matter and providing me with a detailed response on whether or not Hudson Foods is in fact operating within the Hearing Conservation Guidelines established by the Department. If it is determined that Hudson Foods is not operating in accordance with these regulations, I would appreciate any recommendations that you could provide on how Hudson Foods could create a hearing conservation program that would meet the safety needs of its associates, while at the same time discouraging waste.

Thank you for your attention to this matter.

With kind regards,



Tim Hutchinson
Member of Congress




July 13, 1995

The Honorable Tim Hutchinson
Representative
United States House of Representatives
1541 Longworth Building
Washington, DC 20515

Dear Congressman Hutchinson:

Recently, Hudson Foods was made aware that the U. S. Department of Labor -- Occupational Safety and Health Administration issued an interpretation of the Hearing Conservation Standard (29 CFR 1910.95) that is not in keeping with the intent of the Williams-Steiger Occupational Safety and Health Act of 1970.

Under the promulgated regulation [29 CFR 1910.95(i)(1)], OSHA requires that:

Employers shall make hearing protectors available to all employees exposed to an 8-hour time-weighted average of 85 decibels or greater at no cost to the employees. Hearing protectors shall be replaced as necessary.

Hudson Foods strongly and actively supports Hearing Conservation Programs; after all, a preventable loss to an associate's hearing due to occupational illness is unforgivable. The issue is not that employers must provide hearing protectors "free of charge" or that hearing conservation programs are necessary.

Hudson Foods, like many companies that have Hearing Conservation Programs, provides hearing protectors to our associates free of charge and replaces them as necessary; however, to receive a free replacement, the associate must return the damaged hearing protector. If the hearing protector is not returned, Hudson charged the actual cost to the associates (approximately $0.25 for ear plugs and $12.25 for ear muffs). This policy was enforced to prevent waste created by irresponsible associates. Hudson Foods has nearly 12,000 associates with operations in 16 states and abroad. I am sure you could imagine the costs associated with wasted resources.

OSHA contends that our policy is in violation of their interpretation. OSHA states employers must provide free replacements regardless of reason and may not charge cost to the employee as a disciplinary action. We feel that this interpretation falls well outside of the Act as the General Duty Clause [Section 5(a) and 5(b)] states that the employer and employee both have the responsibility to maintain a safe and healthy workplace free of recognized hazards and to comply with all promulgated regulations.

Congressman, Hudson Foods will appreciate any efforts you may make to help us and the Poultry Industry change OSHA's interpretation of the Hearing Conservation Standard. We feel that OSHA should allow employers to require that associates take some responsibility for their own actions when their safety and health is involved. As I interpret OSHA's interpretation, we may not discipline associates for being irresponsible and/or wasting resources when hearing protectors are involved.

Thank you for your time and any considerations you may lend us. I will be honored to discuss this issue with you further. Should you have any questions or need any assistance, please contact me at 501 631-5206.

Sincerely,



Tom Hanson
Manager, Risk Management Services


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