After taking significant heat from Congress during the past year concerning its stagnant rulemaking process, Washington, D.C.-based OSHA suddenly has become more proactive in the regulatory arena. In November 2007, two initiatives moved forward that impact the construction industry: a final rule concerning employer payment for personal-protective equipment and a proposed rule to establish a distinct confined-space standard for construction.
PPE Standard
The PPE standard becomes fully enforceable on May 15. The completed rule requires employers to pay for most types of PPE or ensure it is provided to workers at no cost. The PPE rule applies to general industry, construction and maritime, as well as the construction standard where the new provisions are codified at 29 CFR § 1926.95(d).
The controversial PPE standard was eight years in the making and only finalized after Congress threatened to include the requirement in the Occupational Safety & Health Act as a mandatory statutory amendment. The AFL-CIO also filed a lawsuit in the U.S. Court of Appeals to force the Bush administration to finalize the rule.
As with most things in Washington, the devil was in the details. Industry commenters wanted fairly broad exceptions to the employ- er-pay requirement while unions wanted the entire range of PPE and ancillary clothing to be covered. Although OSHA stated that 95 percent of companies already provide PPE free of charge to workers, the final rule still is calculated to have an $86 million annual impact. OSHA also projects cost savings of $228 million based on reduced injuries and illnesses resulting from having more or better PPE available.
Simply put, the rule requires employers to pay for almost all PPE required by OSHA standards. If PPE is not required by an OSHA standard, then the employer is not required to pay for it. This means employers must pay for the basics, including hardhats, safety goggles, protective gloves, respiratory protection, safety shoes, welding helmets and goggles, face shields, chemical-protective equipment, fall-protection equipment and so on. If an employee wishes to use his or her own PPE, the worker should be allowed to use it as long as it conforms to OSHA requirements. In this scenario, the employer will not have to reimburse the worker for the PPE’s cost.
The standard does not require employers to pay for certain types of PPE that are specific to an individual worker, notably standard safety-toe footwear and prescription safety eyewear, provided that the employer permits such items to be worn off the job site. Footwear with metatarsal support, which an employee requests to use instead of employer-provided detachable metatarsal guards, also is exempt from the employer- pay requirement. However, if the footwear or eyewear can be deemed a nonstandard specialty item, the employer must pay. An example would be prescription eyeglass inserts for full-face-piece respirators that must be used in a toxic work environment, such as asbestos removal. By contrast, employees’ voluntary use of dust masks and respirators that are not required to be used under an OSHA standard would fall outside the scope of the standard and would not trigger the employer-pay requirement.
In addition, OSHA does not require employers to pay for weather-related gear unless it is required because of unusual work conditions. Similarly, the employer is not required to pay for sunglasses, everyday work gloves, rain suits, uniforms, caps, items worn to keep street clothes clean or other garments that are not protective in nature. OSHA also clarifies that ordinary hand tools are not PPE; some specialized tools, such as “hot sticks” for electrical work, may have protective characteristics, but are outside the PPE rule. However, if they are considered “engineering controls,” they still would be required to be provided at employer expense under different OSHA standards.
In short, the logic behind this rule is that employers are better able to select proper PPE after doing a hazard analysis of a worksite and determining what PPE is necessary to protect workers. From an employer’s perspective, maintaining control of PPE selection and maintenance makes sense because an employer can be cited by OSHA if an employee furnishes his or her own PPE and it does not meet OSHA minimum standards. To address industry concerns that workers would be more apt to lose or mistreat equipment if it is purchased by the employer, OSHA states that employers will not be required to pay for replacement gear if it is lost or damaged intentionally by the worker.
Confined-spaces Rule
On Nov. 28, 2007, OSHA published the proposed confined spaces in construction rule and set a comment deadline of Feb. 28. There also likely will be public hearings about this subject before the docket closes.
OSHA is proposing this rule to protect employees from the hazards resulting from confined-space work. Under the proposed rule, employers would have to determine whether there is a confined space at a job site and determine what existing or potential hazards are present. The rule requires employers to place identified hazards into one of four classifications: Isolated-Hazard Confined Space, Controlled-Atmosphere Confined Space, Permit-Required Confined Space or Continuous System Permit-Required Confined Space. Hazard identification under the rule includes determining the characteristics; type and quantity of hazards; and likelihood that a hazard currently absent could enter the confined space, such as engulfment by a material or liquid.
In its broadest OSHA definition, already adopted in its analogous general-industry standard, a confined space has all the following characteristics:
It is large enough and so arranged that an employee can bodily enter it.
It has limited or restricted means for entry and exit.
It is not designed for continuous employee occupancy.
OSHA examples of “confined spaces” likely to be found in the construction environment include bins; boilers; pits for elevator, escalator, pump valve or other equipment; manholes for sewers, storm drains, electrical or other utilities; tanks for fuel, chemicals, water or gas; incinerators; scrubbers; concrete pier columns; transformer vaults; HVAC ducts; drilled shafts; precast concrete or other preformed manhole units; enclosed beams; lift stations; digesters; silos; air receivers; turbines; and bag houses.
Physical hazards that may be present in confined spaces include explosive environments; mechanical, electrical hydraulic and pneumatic energy; radiation; temperature extremes; engulfment; noise; and inwardly converging surfaces. Hazardous atmospheres are defined as consisting of at least one of the following: a flammable gas, vapor or mist in excess of 10 percent of its lower flammable limit; an airborne combustible dust at a concentration that meets or exceeds its lower explosive limit; atmospheric oxygen concentration below
19.5 percent or above 23.5 percent; airborne concentration of a substance that exceeds the dose or exposure limit specified by an OSHA requirement; or an area that presents an immediate danger to life or health. In addition to hazard assessment, the proposed rule includes mandates for information exchange and coordination between host employers and controlling contractors, as well as employee participation and notification. There also are atmospheric testing and monitoring requirements, PPE requirements, and reassessment of potential confined spaces whenever there is a change in the configuration or type of work or materials used that could change the nature of potential hazards. Worker training also is a critical facet of confined- space safety and specific training will be needed depending on an individual’s role in the operation. Training documentation will be required and there are other substantive recordkeeping and paperwork requirements associated with the proposed rule.
The rule’s requirements would not apply to construction work regulated by subpart Y (diving) or non-sewer construction work already covered by subpart P (excavations) or subpart S (underground construction, caissons, cofferdams and compressed air). Other than these, if the confined-space rule applies and another applicable OSHA construction standard also has provisions addressing confined-space hazards, an employer must comply with both rules.
If approved, the rule would form new Subpart AA in 29 CFR Part 1926, which encompasses § 1926.1200 through § 1926.1219 and one mandatory appendix, which is a list of confined-space requirements in other construction standards that supplement the requirements of subpart AA, and one non-mandatory appendix, which is a sample entry permit. Although it has utilized some provisions adopted by ANSI Z117, “Safety Requirements for Confined Spaces,” in its recent confined-space rule, OSHA elected not to simply incorporate by reference; some provisions of the OSHA proposed rule differ from the generally accepted consensus standard.
The proposed rule is lengthy and detailed and a complete analysis is outside the scope of this article; however, employers potentially affected by the standard are advised to take the time to examine it carefully and, where feasible, provide comment to OSHA to establish a complete rulemaking record.
OSHA Gets Proactive
In addition to its work on PPE and confined-space rules, OSHA released its latest regulatory agenda on Dec. 10, 2007. It includes timetables for other construction- related items, such as revision of the agency’s crystalline-silica standard—risk assessment is to be completed early this year—and finalization of the negotiated rulemaking on cranes and derricks—the proposed rule was slated for a January release.
Although OSHA has been in “sleep” mode for most of this administration when it comes to significant rulemaking initiatives, there could be a late push to unblock the pipeline on these and other regulatory initiatives in the waning days of the Bush administration, in part prompted by industry concerns about what might otherwise occur under “new management” if the Democrats succeed in winning the White House.
To stay abreast of new developments, including action on the rules discussed above, construction employers should monitor OSHA’s Web site, www.osha.gov, or get on the distribution list for the agency’s free e-newsletter, “QuickTakes.” The full text of all OSHA proposed and final regulations and their preambles can be accessed through the Federal Register link on OSHA’s Web site.
Adele L. Abrams, an attorney and safety professional, is president of Beltsville, Md.based The Law Office of Adele L. Abrams P.C., a firm that represents employers and contractors nationwide in litigation with OSHA and provides safety training and consultation to U.S. companies. She can be reached at safetylawyer@aol.com or (301) 595-3520.