Noise audiogram baselines after a business changes owners

This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any situation not delineated within the original correspondence.

December 5, 2008

Mr. Danny Herrera

Industrial Hygienist

INEOS NOVA, LLC

[Recipient address omitted]

Dear Mr. Herrera:

Thank you for your July 9, 2008, letter to the Occupational Safety and Health Administration's (OSHA's), Directorate of Enforcement Programs (DEP). Your letter requested an interpretation regarding the Occupational Noise Exposure standard, 29 CFR 1910.95. Below is your paraphrased question followed by OSHA's response.

Question:Does the employer have the option to establish new audiometric testing baselines due to change of ownership, provided that the medical records including area monitoring and personal monitoring are maintained for 30 years?

Answer: No. The employer does not have the option to establish new baselines. When an employer's business changes ownership and remains at the same location retaining the current employees, the employer is required to transfer all audiograms including baseline audiograms to the new employer. In addition, the Occupational Noise Exposure standard at 29 CFR 1910.95(m)(5) states, "if the employer ceases to do business, the employer shall transfer to the successor employer all records required to be maintained by this section. . . ."

Establishing new baselines when ownership changes as mentioned above in your question, would constitute revising the baselines. The standard at 29 CFR 1910.95(g)(9)(i), states that a baseline may only be revised if there is a standard threshold shift (STS) of greater than 10 dB, and an audiologist, otolaryngologist or a physician has deemed the STS to be persistent; or as per 29 CFR 1910.95(g)(9)(ii), the annual audiogram's threshold indicates significant improvement over the baseline audiogram.

Further, even if a business moves to a different location (even out of state), and the same employees are retained, then, the employer must transfer the audiograms including the baselines to the new location. However, if the business changes ownership, relocates and hires new employees, then under these circumstances, the new business would have to establish new baselines for the new employees within six months, as per 29 CFR 1910.95(g)(5).

Also, please bear in mind that the successor employer must also continue the established annual schedule for future audiograms, noise monitoring, and retention of all records as per the requirements of this standard.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep appraised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

Richard E. Fairfax, Director

Directorate of Enforcement Programs