… Providing each authorized entrant or that employee’s authorized representative with the opportunity to observe any monitoring or testing of permit spaces. How many of us have this compliance requirement written into our CS Entry program or permitting procedure? During an inspection, the OSHA CSHO will be looking for evidence this requirement is being met. It is NOT acceptable to claim “anyone can watch the testing whenever they want”, we must ensure that entrants know their “rights” (my words – not OSHA’s).
So why did OSHA revise 1910.146 in 1998 to include this new requirement in the standard? Remember that at the same time this air monitoring provision was added, they added section (l) Employee Participation.
They did this to allow for greater employee participation in the permit-space program and employee access to program information developed under the standard. The Agency believes that these revisions are necessary to ensure that permit space entrants, whose work often requires entry into potentially life-threatening atmospheres, have the information necessary to protect themselves and their co-workers from confined space hazards. Allowing authorized entrants or their authorized representatives to observe the testing of the spaces they are required to enter will help to ensure that the testing has been done properly, that the respirators and other personal protective equipment being worn are appropriate, and that the entrants understand the nature of the hazards present in the space.
Here is what OSHA stated regarding this requirement and their responses to those who felt it would be a “logistical nightmare.”
… But the standard does not require employees to observe all monitoring or testing, it merely offers them the opportunity to do so. The employees and their representatives are less likely to take advantage of that opportunity in particularly hazardous situations. Moreover, even having an entrant or representative close by observing the actions of the person testing the atmosphere, and checking the instruments after the tests are complete could provide safety benefits. Employees already have extensive rights to observe monitoring under OSHA’s health standards. OSHA has seen no evidence, and none was presented in this rulemaking, that this observation creates safety hazards (Tr. 92-93). OSHA does not believe that the final rule’s requirements that employers provide affected employees with an opportunity for employee observation, or those requiring employee participation in paragraph (l), are particularly subject to abuse or constitute an unwarranted infringement on labor-management relations. OSHA standards frequently require that work be performed in a particular way or by specific employees. For example, the Lockout/Tagout (LO/TO) standard, 29 CFR 1910.147(c)(8), requires that locks and tags be affixed by the workers who will be performing the service or maintenance covered by the standard and, as discussed above, numerous toxic substance standards provide affected employees and their representatives with the right to observe hazardous substance monitoring. The requirement that employees who are to enter hazardous confined spaces be allowed to observe the required monitoring of those spaces is analogous to these provisions. Like the LO/TO requirement, it recognizes that the employees whose lives could be endangered by inadequate completion of these preliminary safeguards have the strongest incentive to see that they are performed properly (see Tr. 333).
OSHA also is not persuaded that the monitoring observation requirement is especially subject to employee abuse. Some commenters suggested that during periods of labor management discord, employees could abuse the observation right to slow down or disrupt production. Others expressed concern that the provision could cause what one called a “logistical nightmare” if all of the employees and representatives insisted on observing each instance of testing and monitoring. But again, there was no evidence that this type of disruption is caused by the employee observation provisions in OSHA’s health standards. The standard allows the opportunity for observation by an entrant or his authorized representative, not by every employee and representative at the workplace. Moreover, some employers, either contractually or otherwise, already provide employees with the right to observe monitoring and testing of confined space atmospheres. One witness pointed out that, even in those plants, confined space entrants did not always choose to observe the monitoring (Tr. 202). And of course nothing in this standard interferes with an employer’s existing power to direct and control its workforce, so long as it does not attempt to do so in a manner inconsistent with the standard.
Nor does the provision interfere improperly in labor-management relations, as suggested by some commenters (e.g., Ex. 161-35). In a general sense, many safety and health issues could, in the absence of OSHA requirements, be dealt with through traditional labor management mechanisms. That does not mean, however, that OSHA does not have the authority to require that work be performed in the manner it determines can best reduce safety or health hazards. And OSHA’s exercise of this authority may, in some cases, force employers to alter some aspects of their employee relations. For example, OSHA standards sometimes require employers to provide medical removal benefits to workers whose health may already have been affected by exposure to a toxic substance. These benefits may include job assignments in areas with less exposure to the toxic substance, continuation of pay, or training for new job assignments (29 CFR 1910.1025(k) (lead), 1910.143(f)(2)(iv) (cotton dust)). Although these issues would have been considered labor relations matters in the absence of the OSHA standards, it is clear that OSHA can impose such regulatory requirements to protect employee safety and health. United Steelworkers of America v. Marshall, 647 F.2d 1189, 1236 (D.C. Cir. 1980).
