Hearing Loss Prevention Regulation

What's new in recordkeeping and construction? Plenty, because OSHA has been active recently in both areas.

• By Lee D. Hager
• Mar 01, 2003

AFTER a long period of dormancy, federal OSHA has picked up activity in the area of hearing loss prevention rulemaking. Activity is focused in the areas of recordkeeping and hearing conservation in construction.

Hearing Loss Recordkeeping
After being promulgated in January 2001, stayed in July 2001, and delayed in October 2001, most of the hearing loss aspects of 29 CFR 1904 were made final July 1, 2002, and effective January 1, 2003.

Hearing loss is recordable if it meets these criteria:

• Standard threshold shift (STS) is detected. STS is the change in hearing described in 29 CFR 1910.95, the federal Hearing Conservation Amendment (HCA) to the Occupational Noise Exposure Standard. It is an average 10 decibel (dB) change in hearing ability from the baseline hearing test, or revised baseline as described in the HCA, at 2000, 3000, and 4000 hertz (Hz) test frequencies. STS determination is subject to all of the allowances and requirements of the HCA, including persistence, age correction, and work-relatedness. It is important to note that nothing in the new recordkeeping rule supersedes the HCA. All requirements of 29 CFR 1910.95 remain in place, including STS follow-up, evaluation of hearing protection sufficiency, retraining, and other aspects.
• The STS results in hearing impairment. This step simply requires determining whether the average hearing threshold levels (not shift, but absolute hearing ability) determined by the last hearing test are 25 dB or greater at the STS frequencies. This is called the "25 dB fence" and is the level at which hearing impairment starts. Determine hearing thresholds at 2000, 3000, and 4000 Hz from the audiogram that confirmed the STS; sum, and divide by three. If the result is 25 or greater, the hearing loss is recordable.

The process is described in Figure 1.

OSHA has a few new wrinkles rolled into the requirement for recording hearing loss:

• Preemption--OSHA requires all states to follow the recordkeeping criteria defined in 29 CFR 1904. While this will provide a level playing field and will permit apples-to-apples comparisons of hearing loss prevalence across the country, it is actually a step backward in worker protection in some cases. Michigan, North Carolina, South Carolina, and Tennessee currently require employers to report STS without consideration of the 25 dB fence. These and other entities that have historically chosen a more restrictive measure--or just a different measure--for hearing loss recordkeeping will be required to use the federal standard.
• Work-relatedness--29 CFR 1904 defines work-relatedness as "an event or exposure in the work environment" that "either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness." In addition, and importantly, 29 CFR 1904.5(a) indicates that "Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment . . ." absent some specific exclusions (emphasis added). Determination of work-relatedness must be assessed by a physician or other licensed health care professional; under an agreement between OSHA and the National Association of Manufacturers, the guiding principle is "more likely than not." This agreement places the burden of the decision regarding work-relatedness on the employer, but in the case of disagreement on the work-relatedness of a given case, the burden of proof will fall back to OSHA.
• Separate column--OSHA has required employers to report hearing loss of one description or another since 1986 but without the ability to keep separate track of the hearing loss cases, because the hearing loss reports have been combined with all other non-specified injuries and illnesses. The January 2001 issue of 29 CFR 1904 included a new set of reporting forms with a unique location for reporting hearing loss. As the rule underwent review and revision, the new forms were put on hold and the hearing loss column was dropped from the current version of Form 300. OSHA took additional comment on the need for a separate column and decided the separate column would return, but not until 2004. The separate column will, for the first time, permit benchmarking hearing conservation program performance by industry, SIC, region, or other criteria. For 2003, though, hearing losses meeting the new criteria must be recorded as previously, with all other unclassified injuries and illnesses.
• Applicable industries--While certain industries are exempt from compliance with the HCA (most notably, construction, oil and gas drilling, and agriculture), if employers in these industries provide audiograms to their employees, that data is subject to analysis for compliance with 29 CFR 1904, and hearing losses meeting the new OSHA criteria must be recorded.

Hearing Conservation in Construction
On August 5, 2002, OSHA issued an advance notice of proposed rulemaking (ANPRM) regarding hearing conservation programs for the construction industry. This mechanism is OSHA's alert that it is giving serious consideration to a new rule, and it provides an opportunity for comment and input as the rule is being developed.

While some rules are in place for construction noise and hearing (29 CFR 1926.52 for noise and 29 CFR 1926.101 for hearing protection), those rules do not include many of the protections offered by the general-industry hearing conservation standard. There are currently no requirements for noise monitoring, hearing testing, training, or many other aspects of hearing conservation as applied in general industry.

The construction business poses many challenges to the effective implementation of hearing conservation programs:

• The industry is inherently noisy. Even relatively quiet trades, such as electricians, can commonly be exposed to excessive noise levels because of their proximity to noisy operations. Noise exposure in construction is in large part not a function of what you do, but where you are, and noise is very pervasive in construction operations.
• The stakes can be high. The combination of high noise levels and hearing impairment common in some construction settings can result in unacceptable safety risks as warning signals and verbal communication become inaudible. The high risk of accidents from noise and hearing loss on construction jobs is one of the key considerations for this initiative.
• Construction noise tends to be intermittent and impulsive--two characteristics that can compromise the effectiveness of a hearing protection program. Reliance on hearing protection as the first line of defense for worker hearing in construction is made more difficult by the nature of the noise exposures. Intermittency makes accurate determination of exposure very difficult; operations vary so much that any given day's exposure may not be representative of long-term risk.
• The workforce is mobile. When a drywall crew works for six different general contractors in the course of a construction season, who is responsible for their training and medical surveillance? Who keeps the hearing test records? Who is responsible for the hearing loss, both in terms of recordkeeping and in terms of compensation liability?
• The industry is comprised, for the most part, of very small employers. It can be problematic to enforce a rule on an issue such as hearing conservation when, as OSHA indicates, 85 percent of the firms, employing 50 percent of the construction workforce, have fewer than 20 employees.

While these problems are significant, they are not insurmountable. New technologies in Web-based data management, for example, could make a worker's hearing tests available to him or her regardless of who the employer of the month may be. Presumption of exposure--assuming that all construction workers are at sufficient risk of hazardous exposure to deserve inclusion in the hearing conservation program --could obviate the need for detailed monitoring. With innovation and creative thinking, it is possible to prevent hearing loss in the construction trades.

The timeframe for promulgation of a construction noise standard is undefined at this time. OSHA has collected comment from interested parties and is evaluating that input to determine where to go next. The issue remains on the December 2002 semi-annual regulatory agenda as a prerule item, so further action could be forthcoming.

After a long dormancy, OSHA is waking up to the need for revised regulations to protect workers from the hazards of high noise exposure. The coming months could open the door to the next steps in regulatory tools to help prevent hearing loss.

This article originally appeared in the March 2003 issue of Occupational Health & Safety.