- ISHN GLOBAL
- EHS RESEARCH
The OSHA statement, contained in a December 31, 2008 letter from Acting Assistant Secretary of Labor Thomas M. Stohler in response to a request from the ISEA, clarifies that federal certification of respirators preempts contradictory state court claims.
Respirator manufacturers have faced a surge of hundreds of thousands of state court tort claims in recent years, many of them vaguely alleging design and warning defects despite NIOSH approval. OSHA’s interpretation of the law will provide needed guidance to courts considering such lawsuits.
“This ruling from OSHA recognizes the importance of having a single national set of performance requirements that is not subject to being modified or contradicted by subjective standards that are produced at litigation,” said ISEA president Dan Shipp.
OSHA standards to protect workers against airborne contaminants require the use of respirators certified by the National Institute for Occupational Safety and Health (NIOSH) as meeting exacting specifications and labeling requirements. NIOSH standards represent a delicate balancing between the need to filter out harmful particles while allowing a sufficient inflow of breathable air.
“Respirator manufacturers have become innocent bystanders in asbestos and silica litigation, in which they are named among dozens of other companies in a search for a solvent defendant – not because they are at fault,” said Shipp. “The respirator manufacturers did not make the hazardous material in such lawsuits, but sought to protect workers from it.”
While respirator manufacturers can and have successfully defended against such claims, this litigation comes at a steep price to the public. Already, one major manufacturer has ceased production of the most widely used N-95 respirators for the U.S. industrial market.