OSHRC dismisses citation for failure to require employees to wear high-visibility vests in work zone

Abstract

A construction management and heavy construction company, based in Ohio was hired to expand a four-lane highway. Based on the observations of an OSHA compliance officer, the company was cited for violating 1926.95(a) - Criteria for personal protective equipment, because nine of its employees working in or near oncoming traffic did not wear high-visibility vests. This citation was subsequently amended to allege a violation of the General Duty Clause under the OSH Act.

Although the company did take steps to protect its employees — by establishing a work zone, marking the zone with three-foot high orange cones, using an arrow board to direct the traffic, and providing vests for both flaggers and other employees to use while working in the zone — it only required its flaggers to wear the vests.

Conclusion

OSHRC agreed with the judge's decision to dismiss the violation of 1926.95(a) due to the language in the regulation, which does not indicate whether "protective equipment" includes high-visibility vests.

According to the judge, "reflective warning vests" operate as a warning signal in contrast to the specific forms of "protective equipment" addressed by the other standards within Subpart E of 29 CFR Part 1926. The judge also concluded that the Secretary of Labor does not consider "high-visibility vests" or "warning vests" to be personal protective equipment.

OSHRC affirmed the judge's decision and stated that the Secretary's interpretation of the regulation was not reasonable and that 1926.95(a) suggests that warning garments may not be considered PPE.

When addressing the violation of the General Duty Clause, OSHRC reversed the judge's decision based on the fact that there was a lack of fair notice concerning what conduct was required with regard to the use of high-visibility vests in a work zone.

According to OSHRC, the Secretary of Labor suggested, in a May 2004 letter, that the Manual on Uniform Traffic Control Devices (MUTCD) reflects industry practice with respect to identifying the types of situations where workers need high-visibility warning garments. In the letter, the Secretary stated that in cases where construction employees work in highway/road construction work zones, who are not flaggers, the General Duty Clause requires the use of such garments.

Full text decision

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