The Occupational Safety and Health Act of 1970 and regulations thereunder set forth comprehensive rules concerning health and safety. An entire section, 29 C.F.R. § 1926, is devoted to the construction industry, which unfortunately accounts for disproportionate numbers of workplace injuries and fatalities.
Readers of this column are aware that, in addition to all of its detailed safety rules, the Act contains a “General Duty Clause,” (§ 5(a)(1) of the Act) which covers areas that are not addressed by any specific standard. It states that the workplace must be free from recognized hazards that are likely to cause death or serious physical harm.
Many employers see the “General Duty Clause” as a bugbear, suspecting that it gives OSHA inspectors a blank check to issue a citation, where the employer has obeyed all known rules, but the inspector finds a condition that could, just possibly, place employees at risk.
As illustrated by a recent case from the OSH Review Commission, however, while at times the precise reach of the General Duty Clause is not entirely clear, it’s not a catch-all that OSHA inspectors can use, at their whim, to impose new regulations.
In Secretary v. Ruhlin Co., the employer was an Ohio construction management and heavy construction company. The project was the expansion of a four-lane highway in Akron. Part of the job required the replacement of a section of the shoulder, to create an additional lane of traffic. A work zone was marked off by 3’ high orange cones. An arrow board directed traffic to the left lane, and informed drivers that the speed limit was reduced from 50 to 30 MPH.
OSHA inspectors observed employees in the work zone who were not wearing high-visibility vests. Such vests were made available by Ruhlin to all employees working within the work zone, but only flaggers were required to wear them.
OSHA issued Ruhlin with a citation, alleging in the alternative that the failure to require the vests either constituted a violation of 29 C.F.R. § 1926.95(a) (the construction-industry standard for PPE, personal protective equipment) or was a violation of the General Duty Clause.
The administrative law judge found no violation under § 1926.95(a), but imposed a penalty on the employer for violating the General Duty Clause.
On review, the Commission upheld so much of the ALJ’s decision that held that high-visibility vests are not encompassed within PPE, but reversed the ALJ’s finding that failure to wear high-visibility vests violated the General Duty Clause.
The Commission’s decision in Ruhlin Co. is instructive, in that it lays out understandably how the Commission approaches cases that require it to interpret the regulations.
Three questions, the Commission found, were presented:
Whether high-visibility vests are PPE within the scope of § 1926.95(a);
Whether the alleged General Duty Clause violation was “pre-empted” by a more specific standard; and
Whether Ruhlin had fair notice that it had to provide high-visibility vests to its employees in the highway construction work zone.
To answer the first inquiry (are the vests PPE?) the Commission asked, first, if § 1926.95(a), standing alone, unambiguously includes high-visibility vests as one type of “protective equipment.”
As, unquestionably, the language of the standard does not unambiguously define warning equipment as PPE, the Commission looked next to the standard’s legislative history. That, too, proved to be a dead end, as nothing in the legislative history clarifies whether the PPE standard was intended to include warning garments, as distinguished from equipment that acts as a barrier or shield.
Failing a clear answer from the language of the standard or its legislative history, the Commission found it necessary to decide the issue based on whether the interpretation advanced by the Secretary (that high-visibility vests are PPE) was “reasonable.”
In this context, determining “reasonableness” requires taking into account the consistency with which the interpretation has been applied, the adequacy of notice to regulated parties, and the quality of the Secretary’s elaboration of the pertinent policy considerations.
Applying these criteria, the Commission found the Secretary’s interpretation of the standard to define high-reflective vests to be unreasonable. PPE is required to guard against injury or impairment “through absorption, inhalation or physical contact.” Equipment identified as PPE (e.g., safety-toe footwear, helmets, eye and face protection, respiratory protection, etc.) generally acts as a “barrier” or “shield.” Where OSHA requires the use of warning garments, the latter are specifically identified as such in the applicable standard (as those requiring marine terminal employees, cargo-handling personnel, or flaggers in the construction industry to wear warning garments). Where a term is specifically used in one regulation but omitted in another, the Commission reasoned, it should not be found by implication.
The Commission held also that, by neither specifying warning garments as PPE when the standard was promulgated in 1993, or when the related standard for “Signs, Signals and Barricades” was amended in 2002, the Secretary both showed a lack of intent to treat warning garments as PPE, and failed to give fair notice to the regulated community.
After a detailed examination of prior interpretations of the standard, the Commission determined that the interpretation being urged in the case before it was not one that had been consistently applied, and it chided the Secretary for attempting to impose a requirement under the guise of an interpretation, in order to avoid statutory rulemaking procedures to amend the standard.
Having affirmed the ALJ’s vacatur of the § 1926.95(a) item, the Commission next examined, and rejected, the employer’s argument that the General Duty Clause was “pre-empted” by a specific regulation, 29 C.F.R. § 1925.200(g)(2) (which incorporated by reference § 6D.02 of the Manual on Uniform Traffic Control Devices).
This issue will not be explored in depth here, but you should be reminded that the General Duty Clause will not be applied where the matter at issue is addressed in a specific OSHA standard. The Commission in Ruhlin Co. held that pre-emption was not established, because the provision claimed to be incorporated by reference did not contain “mandatory language” (i.e., the word, “shall”) and was therefore only “advisory” — not enough for pre-emption.
The final issue (and the one that best illustrates the Commission’s usual approach, which is to apply the General Duty Clause fairly) was whether Ruhlin had fair notice that it would be obligated, under § 5(a)(1), to provide high-visibility vests to employees other than flaggers.
The Commission noted that the MUTCD provision, cited by the Secretary as establishing an industry practice, merely states that workers in proximity to trafficked roadways “should wear bright, highly-visible clothing.” The Secretary’s Field Inspection Reference Manual, the Commission noted, is express that “Section 5(a)(1) shall not be used to enforce ‘should’ standards.” Under the circumstances, the Commission concluded, Ruhlin could not have been sufficiently apprised that it had to require use of high-visibility vests by employees other than flaggers. The ALJ’s finding of a violation of § 5(a)(1) was reversed, and the citation vacated in its entirety.
The lessons to be drawn from the Ruhlin Co. case are, I believe, the following.
First, despite imperfections as affect every system of laws and rules devised by mortals, on the whole OSHA deserves solid grades for both effectiveness and fairness. The “General Duty Clause” isn’t a license for OSHA inspectors to slam you when frustrated that they can’t identify anything you’ve really done wrong. Citations under the General Duty Clause will be vacated, where the employer has insufficient notice, or where the hazard identified is not one recognized in the industry.
At the risk of sounding like I’m drumming up business for the brotherhood, as a further lesson from Ruhlin Co. I’ll remind you that all “serious,” “repeat,” and “willful” citations are never trifling matters, and require the attention of experienced legal counsel. The reversal in Ruhlin Co. was won by good lawyering, and even where a skilled attorney may be unable to get the citation vacated or withdrawn, he or she can often help to negotiate a reduction in the seriousness level of the citation, and/or a reduction of the penalty.
Keep in mind, also, that in addressing any OSHA citation, there is more at stake than a (usually) modest monetary penalty, at least if you plan to be in construction for any length of time. OSHA citations can have repercussions that far exceed the penalties for the violations alleged. Handling a citation correctly can impact whether the agency regards you as a safety-conscious employer or not — to say nothing of your labor relations, business reputation, insurance costs, eligibility for public contracts, and more.
A further lesson from this month’s OSHRC case is this. As an employer, at times it will occur to you that there are things you can do to enhance employee safety, that go above and beyond what OSHA requires. Sometimes, the line may be a difficult one for you to draw — typically, where it appears that the direct or indirect costs of carrying out the enhancement may be significant, and the reduction of the risk to your workforce may be but very slight.
However, while often there are gray areas, and the line may be difficult to draw between enhanced safety and economic cost, where the line can be easily drawn, why not draw it in favor of protecting your workforce?
The outcome in Ruhlin Co. was, of course, that the employer was spared a monetary penalty for not extending to all workers on its highway jobsite a safety requirement (wearing a high-visibility vest) that does apply to flaggers.
The better lesson, however, is not to dismiss the use of vests as unnecessary, but to consider that they are within a class of optional safety measures that are relatively inexpensive, do not reduce productivity, and are unlikely to meet with much resistance by employees. The construction workforce is, generally, a young demographic within the adult population, and many construction workers are of an age in which they still believe themselves to be immortal.
If, like me, you are old enough to know the facts about mortality, or if perchance you have seen a highway construction worker lose his legs, or his life, when struck by an oncoming vehicle, the fear of being seen as overly protective should not deter you from taking easy, inexpensive, and obvious measures to safeguard any young, heedless, or just plain dumb workers in your employ. The General Duty Clause is not a mandate to find and implement every precaution against every imaginable risk, but neither is it a bar against using your common sense to protect your workers, on whom your business depends.
Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.