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Standard Number: 1926.200; 1926.201; 1926.202; 1926.203; 1926.201(a); 1926.200(g)(2); 1926.651(d)
May 11, 2004
Mr. Bradley M. Sant, Esq.
Vice President, Safety & Education
American Road & Transportation Builders Association
1010 Massachusetts Avenue, NW
Washington DC 20001
Re: Whether use of high-visibility warning garments by construction workers in highway work zones is required.
Dear Mr. Sant:
This is in response to your e-mails dated March 11, 2004, to the Occupational Safety and Health Administration (OSHA)'s Directorate of Construction. You asked for clarification on OSHA's policy regarding the Federal Highway Administration (FHWA)'s 2003 Manual of Uniform Traffic Control Devices (MUTCD) with regard to high-visibility apparel. We have paraphrased your questions as follows:
Question (1): In effect, the FHWA's Manual of Uniform Traffic Control Devices (MUTCD) has become a national benchmark for traffic control devices on all roads. In September 2002, OSHA amended its construction standards for signs, signals, and barricades in Subpart G of 29 CFR Part 1926 1 to incorporate use of the MUTCD -- either the 1988 Edition, Revision 3 (from 1993), or the "Millennium Edition" (published in December 2000). However, FHWA has now amended the MUTCD several times subsequent to issuance of the 1988 Edition, Revision 3 (from 1993), or the "Millennium Edition." Will OSHA promulgate further amendments and/or revisions to Subpart G to follow the FHWA amendments to the MUTCD, such as those regarding high-visibility apparel?
Answer
In the past, amendments to the MUTCD have been issued every few years, and substantial revisions came out over a decade or two. In the preamble to the final rule published on September 12, 2002 (at 67 FR 57723), amending Subpart G, OSHA explained that:
Currently, OSHA has no plans to amend Subpart G. However, under OSHA's de minimis2 policy, compliance with more current DOT requirements, or with more current ANSI or other applicable nationally recognized consensus standards, is acceptable, so long as such standards are at least as protective as the OSHA requirement.
Question (2): Construction employees working on highway/road construction work zones often risk being struck by traffic. Do the OSHA standards require high-visibility apparel for these construction workers?
Answer
Section 1926.201(a) states:
Under this provision, where the MUTCD requires the use of flaggers, they must be used. In addition, where they are used, the warning garments they wear must meet the MUTCD requirements.
Other than the use of flaggers, Subpart G does not address the circumstances in which it is necessary to provide warning garments to protect against the hazard posed by traffic.3 However, under Section 5(a)(1) of the Occupational Safety and Health Act, employers are required to furnish to their employees:
It is well recognized in the construction industry that construction workers in highway/road construction work zones need to be protected from traffic. The MUTCD reflects industry practice with respect to identifying the types of situations where these workers need high-visibility warning garments. In such cases, Section 5(a)(1) requires the use of such garments.
[This document was edited on 10/19/09 to strike information that no longer reflects current OSHA policy. See the August 5, 2009 clarification letter.]
If you need additional information, please do not hesitate to contact us by fax at: U.S. Department of Labor, OSHA, Directorate of Construction, Office of Construction Standards and Guidance, fax # 202-693-1689. You can also contact us by mail at the above office, Room N3468, 200 Constitution Avenue, N.W., Washington, D.C. 20210, although there will be a delay in our receiving correspondence by mail.
Sincerely,
Russell B. Swanson, Director
Directorate of Construction
1 The amendments to Subpart G (§§1926.200-1926.203) were published in the September 12, 2002, Federal Register (at 67 FR 57722), effective on December 11, 2002.
2 Under OSHA's de minimis policy, violations are those which have no direct or immediate relationship to safety or health are considered de minimis. De minimis violations of standards exist when an employer complies with the clear intent of the standard but deviates from its particular requirements in a manner that has no direct or immediate impact on the safety and health of workers. OSHA does not impose penalties or require correction of de minimis violations.
3Note that, in addition, for work in which 29 CFR Part 1926 Subpart P (Excavations) applies, §1926.651(d) requires that "employees exposed to public vehicular traffic shall be provided with, and shall wear, warning vests or other suitable garments marked with or made of reflectorized or high-visibility material."