Employer Negligence

[chris660]

What is the name of your state (only U.S. law)? PA

I work for a pharmaceutical manufacturing plant. I have to use a supplied-air respirator and tyvek suits when working with the various hazardous materials used in the manufacturing process.

About 2 weeks ago I noticed a crack in my mask because i check it before I have to use it. It was a night shift and I told my boss that I had a crack in my mask and he said that the safety manager would be in at 9pm and to talk to him to get a new one.

I talk to the safety manager and he gets me a new mask and asks me to do a positive and negative pressure check on it (this involves putting the mask on....putting your hand over the hole in the mask...inhaling and exhaling to check the mask for a seal). It felt ok.

So I asked him if I needed a "fit test" (which is a test where you put your respirator on and they hook you up to a machine and it checks for a proper mask seal during facial expressions, jaw movement, speaking, head and neck movement, since my job involves moving all around in various positions while wearing the mask) He said I didn't need one since I passed the + and - seal check.

I asked my boss if I needed a fit test, and he says they will have to get me one, but to do what i was suppose to do and they will get me one next week (when i would have a monday day shift).

A couple days after wearing the new mask I noticed that I wasn't feeling too good. I asked my boss if I could get the fit test and he jokingly said "I'll give you a fit test" I don't know what that means.

Anyway, I am still feeling fatigued all the time and don't feel that I am breathing like normal and I am getting frequent headaches. I have a feeling that my mask is not fitting properly and I am being exposed to these harmful chemicals.

I have a doctor's appointment next week, and I am very upset that this company takes our safety as a joke and I would like to sue. Do I have a valid case?What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

 

[chris660]

1910.134 (f) (2)

The employer shall ensure that an employee using a tight-fitting facepiece respirator is fit tested prior to initial use of the respirator, whenever a different respirator facepiece (size, style, model or make) is used, and at least annually thereafter.



Ok, I looked this up with OSHA on my own and it seems like they can say my initial fit test will cover my mask since it is the same size. however, my only fit test with the company was in March of 2007....so they should have been required to test me prior to April 2008? Correct?

 

[mmmagique]

If what you are quoting is correct, then yes.

I would speak to an attorney regarding this, but remember, this particular type of attorney is relatively expensive.

I'm sorry that you are going through this though, and hope everything works out well for you.

 

[Hoe1979]

You are correct in that yearly you should be getting fit tested or anytime the below quote in bold from OSHA shall happen. The only thing that has me a bit fuzzy is if they exchange the same model and brand of respirator. Then why would the previous one work but not the new one if they were the same? Plus if you have a supplied respirator than there should be a positive pressure inside the mask and you would be able to feel the air leaking. I might be way off but these are just a few thoughts I had.

1910.134(f)(3)

The employer shall conduct an additional fit test whenever the employee reports, or the employer, PLHCP, supervisor, or program administrator makes visual observations of, changes in the employee's physical condition that could affect respirator fit. Such conditions include, but are not limited to, facial scarring, dental changes, cosmetic surgery, or an obvious change in body weight.

 

[chris660]

You are correct in that yearly you should be getting fit tested or anytime the below quote in bold from OSHA shall happen. The only thing that has me a bit fuzzy is if they exchange the same model and brand of respirator. Then why would the previous one work but not the new one if they were the same? Plus if you have a supplied respirator than there should be a positive pressure inside the mask and you would be able to feel the air leaking. I might be way off but these are just a few thoughts I had.

I'm guessing the new one wouldn't work due to a mechanical defect or if it was too big in the 1st place. I don't think I was sized properly when doing my original fit test. I told the previous safety manager that no longer works there that I thought my mask was too big and felt loose. She insisted since I passed the fit test it was fine, but she would get me a smaller mask when they came in. And I never heard from her after that and she found another job.

I have already had 2 health incidents at work. One, I developed sores on my hands for unknown reasons. The work doctor said it was an allergic reaction to latex. The second, I developed sores on various parts of my body and a rash going up and down both arms and legs. It would slowly go away on off days, then start again when at work.

Every year we get blood work done where I work. My eosinophils were elevated: norm 0 - 7.....mine were a 16. My doc said this indicated an allegric reaction to something I was coming in contact with. HE advised me to stay out of work for a couple months, then get blood work again to see if the eosinophils dropped. They did, down to a 7. He said this proved I was allergic to something I work with.

I spoke to the safety dept about it, but they weren't interested and said it was a disibility incident and not workman's comp so it couldn't be proved to be plant related.

And thanks for your help and concerns in this matter. I appreciate it

 

[abinaya]

Employers have a duty of care for their employees and they have very stringent safety rules to follow. If you have been injured at work as a result of employer negligence then you may have a very good case for compensation.

Your injury might have been because of faulty equipment, a breach in health and safety or possibly an unsafe system of work. If you suffered any sort of illness or distress due to employer negligence then you are entitled to make a claim. Your employer is legally required to hold employers liability insurance and they are not allowed to threaten, sack, punish or intimidate an employee who makes a claim. If this happens then you are also entitled to make an additional claim for wrongful dismissal.

 

[latigo]

Employers have a duty of care for their employees and they have very stringent safety rules to follow. If you have been injured at work as a result of employer negligence then you may have a very good case for compensation.

abinaya:

Not so! You obviously have much to learn about workman compensation legislation.

Here you seem to be ignorant of the fact that all of the various state legislative measures expressly abolish workmen's civil claims against employers as otherwise afforded under common law.

Universally State Workman’s Compensation laws are enacted under the police and sovereign power of the state. Their stated purposes are to do away with the common law system governing the remedies of workmen against employers for work related injuries and disease and provide scheduled compensation irrespective of negligence on the part of the employer.

Meaning that contrary to your response, a workman cannot seek civil compensation against the employer on the basis of the employer’s failure to exercise due care for his or her safety.

The trade off is that ALL work related injuries are compensated within the schedules and frameworks of the acts.

Pennsylvania’s Workman’s Compensation Act is no different. Article III section 301 (a) provides in part:

“Every employer shall be liable for compensation for personal injury to, or for the death of each employee, by an injury in the course of his employment, and such compensation shall be paid in all cases by the employer, WITHOUT REGARD TO NEGLIGENCE, . . “

Moreover, employers are required to carry Work Comp Insurance, but the coverage those policies afford is NOT based on tort liability under common law principles - as your post incorrectly suggests.

Sax

 

[chris660]

so if i didn't work there anymore.....say i quit.....do these laws still apply? or can i sue now that i am not an employee?

 

[cbg]

The laws still apply. The law does not suddenly go away because you changed jobs.