U.S. passenger vehicles have come equipped with seat belts for more than forty years. During that time, seat belt use on U.S. roadways is believed to have saved some 200,000 lives.
Despite decades of public service announcements urging seat belt use, it may surprise you to learn, as recently as 1994, seat belt use by U.S. motorists was only about 58%. In the decade since, “Click It or Ticket” laws have pushed that number up to about 80%, but even today, an estimated 6,000 traffic fatalities each year are attributed to the failure to use seat belts.
As millions of American drivers risk death and dismemberment daily by operating automobiles on highways without using seat belts, it will come as no surprise that construction workers, operating heavy equipment off-road and at low speeds, sometimes fail to “Buckle Up for Safety.”
Construction industry employers know, or certainly should know, that they are required by OSHA (29 C.F.R. § 1926.602) to provide seat belts for offroad vehicles, and equipment that meets the requirements of the Society of Automotive Engineers’ standard, “Seat Belts for Construction Equipment” (J386-1969).
While clearly employers must provide seat belts on off-road construction equipment, a further question is whether the employer violates OSHA, if it fails to ensure that employees actually use the seatbelts. If an OSHA compliance officer happens to spy one of your employees operating a piece of equipment without an available seat belt being fastened, will you have to prove “unavoidable employee misconduct” to avoid being cited for an OSHA violation?
As an employer, of course, your objectives are to minimize jobsite risks to your employees and to avoid OSHA citations altogether (which is better than prevailing in the Court of Appeals, based on subtle legal arguments). As a practical matter, therefore, it’s certainly not a bad idea to have, and to enforce, rules requiring the use of seat belts.
Curiously, however, as a legal matter it appears less than certain that the employer, technically speaking, violates OSHA if it provides the seat belts, but fails to ensure the belts’ actual use by its employees.
In addition to explaining why I believe this to be so, I want to mention that OSHA regulations and enforcement are intended to promote workplace safety, and like most laws and regulations concerning safety (building codes are a prime example) OSHA regulations are based on currently-accepted assumptions. Unavoidably, they sometimes lag behind advances in technologies, practice, and materials, and current understandings about what really works in promoting safety, and what doesn’t.
OSHA compliance officers sometimes cite construction companies for failing to assure actual seat belt use, but while there are plausible arguments in support of such citations, they are something of a stretch. For example, one basis cited in support is the requirement that employers assure the use of “Personal Protective Equipment.” A DOL interpretation letter from 2004, for example, states that seatbelt use (enforced by the employer) is sometimes mandated under 29 C.F.R. § 1926.28(a), which reads:
The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees.
However, while the “Personal Protective Equipment” rules have been cited as justification for requiring seat belt use, this particular interpretation letter addressed whether operators of mobile cranes with operator cabs are subject to a seat belt requirement. The conclusion was that the crane was a “motor vehicle” when being driven or used to transport employees from one place to another (including off-road transportation) but that the regulations’ definition of “motor vehicles” did not embrace the same piece of equipment when used in lifting operations. Indeed, this interpretation letter opined that, if used exclusively in lifting operations, the crane would even not be required to have a seat belt.
Although we did not find a case giving a definitive answer to the question, there are at least one or two older cases in the OSH Review Commission that suggest that the use of seat belts on construction equipment may be required under OSHA’s “General Duty Clause,” 29 U.S.C. § 654(a)(1).
In the absence of a clear rule, whether in the regulations or in the case law, a substantial (if legalistic) argument can be made that seat belt use is not required on the construction jobsite, as follows.
Generally, the General Duty Clause will not apply where a specific OSHA standard can be shown to govern the issue in question. OSHA has a seat belt standard specific to the construction industry, as mentioned — plus three others applicable to logging operations, high-speed gantry cranes used in marine terminals, and tractors used in agricultural operations.
The agricultural and logging seatbelt standards, significantly, both require not just that belts be available, but that the employer ensure that the employees actually use them and, indeed, that they tighten them properly. The construction industry standard specifies neither that the employer must ensure use of the belts, nor that it ensure the correct use of the belts.
OSHA regulations are generally construed by the same rules that apply to legislative enactments. Although cynics may be horrified by the notion that the legislature is presumed to know what it is doing, in fact the law requires precisely that presumption. Enactments on the same subject matter, even if adopted years apart, are required to be read together and — except where the result is clearly absurd — construed and harmonized, as though they were a unitary enactment.
Thus, if (1) OSHA adopts several, industry-specific seatbelt standards; and (2) it provides in certain of them that the employer must (in addition to merely providing seat belts) take care that employees buckle themselves in, and fasten their seat belts properly, while (3) omitting any such requirements in the others, then, by the rules of interpretation just mentioned, there’s a respectable legal argument that OSHA must be deemed to have left the additional requirements out of the construction regulations advisedly.
That argument is worth considering if your get cited by OSHA because your employee has been caught not wearing a seatbelt. Nevertheless, larger issues are obviously implicated.
Some relevant concepts can be found in a 1979 OSH Review Commission decision, Secretary of Labor v. Royal Logging Co. In that case, a logger working in Montana was killed when his ROPS-equipped crawler (tracked) tractor with a front (bulldozer) blade overturned, pinning him beneath the ROPS. This bulldozer-equipped tractor, or “cat,” was used to create initial trails, to mark the area within which trees are to be cut, and later to clear debris, smaller trees and felled timber.
At the time of the fatal accident, the operator had been cutting strips on a “35 to 40 percent” grade. Experts testified that a “20 percent” grade (or about 18 degrees) might cause a “cat” to roll over; that the equipment was nevertheless routinely operated on grades as steep as 36 degrees, and that (as of 1975, when this fatality occurred) deaths due to rollovers were common events in the logging industry.
“Cat” operators were resistant to using seat belts, as they considered the risk of being thrown out and crushed by the ROPS or the cat itself to be lower than the risks posed by tree branches which, when placed in tension and then released by the passage of the cat, can sweep along and into the side of the cab, injuring the operator, or may break off or catch, and fling rocks and dirt at the operator. Many cat operators shunned wearing seat belts due to these “sweepers.” A kindred hazard, the “jillpoke,” is a branch with a sharp broken end, which may be thrust into the cab with sufficient force to tear the seat. These hazards are encountered perhaps a dozen times a day, and operators often jump out of the cabs of their cats to avoid them.
Although apparently no loggers had been killed or seriously injured by “jillpokes” or “sweepers” since a death from a jillpoke some 30 years before, the consensus in the industry (as the employer’s expert testified) was that seat belts should not be worn by cat operators.
Although a specific use-of-the-seatbelt requirement was later adopted for the logging industry, at the time of the Royal Logging Co. case none was in effect, wherefore the Secretary cited the employer under the “Personal Protective Equipment” clause related to the construction industry, and the “General Duty Clause.”
The ALJ found that, although the decedent had not been engaged in construction operations, the equipment he was operating was identical to a kind used in construction, and indeed was more susceptible to rolling over in logging operations than in construction operations, because of the terrain. In addition, the ALJ found that, in the logging industry, the failure to wear a seat belt in ROPS-equipped earthmoving equipment was a recognized hazard.
The upshot of the preceding discussion is that a means of abating a hazard (wearing a seat belt) may be challenged as “infeasible” not only if the method of abatement proposed is impracticable, but if it would expose employees to equivalent or greater hazards. Thus, construction employees may be justified in not wearing seat belts, when using equipment and when engaged in operations in which using the belt is shown to be riskier than not wearing it. The employer, to be sure, has the burden to show that this is the case.
Case results — including cases in which OSHA reduces or eliminates penalties before litigation, based on the legal uncertainty of its position regarding an actual citation — may bring about change or clarification in the regulations themselves, complementing more formal rulemaking procedures.
Notwithstanding some degree of uncertainty regarding whether OSHA can penalize an employer’s failure to ensure seat belt use by construction equipment operators, such use should be required (and appropriate rules communicated to employees and enforced) absent something like a consensus amongst operators of specific kinds of equipment, used for specific purposes, that countervailing safety considerations (e.g., the need for agility, visibility, or the ability to evade objects intruding into the cab) render seat belt use more dangerous to the operator than leaving the seat belt unused.
Where strict adherence to an OSHA standard fails to further OSHA’s purpose — to protect the lives, health and safety of employees in the workplace — often it will be worth it to, first, try to negotiate away the citation, and then (perhaps) to contest it, even if technical noncompliance is clear. Although every case is different (consult your lawyer!) OSHA, the Commission, and the Courts, while dismissive of arguments that are clearly pretextual, are usually receptive to reasonable, good-faith arguments that, under the circumstances, strict enforcement should be excused as counterproductive to OSHA’s primary aims.
A notable caveat, of course, is that an employer with a poor history of OSHA violations will probably have both a credibility problem, and possibly a greater risk of a finding of “willfulness,” and the repercussions that can result from such a finding. In a given case, however, a well-supported argument that seat belt use is counterproductive in the specific context for which the employer has been cited may succeed or, failing that, result in a reduction of penalties. And, if your contest helps to bring about changes in the regulations that clarify precisely what is required of employers and/or bring OSHA more in line with workplace safety realities, that will be a worthwhile side effect of your efforts.
Again, consult OSHA counsel and, in the meantime, fasten that seatbelt before you put your car into drive.
1The requirement applies to “scrapers, loaders, crawler or wheel tractors, bulldozers, off-highway trucks, graders, agricultural and industrial tractors, and similar equipment.” There is a related standard that applies in the case of agricultural and light industrial tractors.
2 Apparently, this testimony meant a grade of about 31.5 to 36 degrees.
3 Note that, sometime after the Royal Logging Co. decision, OSHA seatbelt rules for the logging industry were made more stringent, overruling the loggers’ judgment that “sweepers” and “jillpokes” were more dangerous than rollovers.
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.