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Standard Number: 1926.200; 1926.200(g)(2); 1926.201; 1926.201(a)
Letter #20080829-8611
Re: Whether use of high-visibility warning garments by construction workers in highway work zones is required.
We previously wrote to you on May 11, 2004 in response to your question about the use of high-visibility apparel in highway construction work. We stated:
Since that was not OSHA's view, we are withdrawing our earlier answer to that question, restating the question below, and providing a more comprehensive answer to clarify and expand on OSHA's reasons for concluding that section 5(a)(1) of the Occupational Safety and Health Act requires construction workers in highway/road construction work zones to be protected from road and construction traffic by wearing high-visibility garments.
Question: 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: Road and construction traffic poses an obvious and well-recognized hazard to highway/road construction work zone employees. OSHA standards require such employees to wear high visibility garments in two specific circumstances: when they work as flaggers1 and when they are exposed to public vehicular traffic in the vicinity of excavations2. However, other construction workers in highway/road construction work zones are also exposed to the danger of being struck by the vehicles operating near them. for such workers,section 5(a)(1) of the OSH Act, 29 U.S.C. §654(a)(1), also known as the General Duty Clause, requires similar protection3.
The Federal Highway Administration's (FHWA) recent issuance of a final rule (Worker Visibility, 23 CFR Part 634)4 demonstrates the need for all workers who are exposed either to public traffic or to construction vehicles and equipment to wear high-visibility apparel5. Section 634.3 of the Worker Visibility Rule states:
The FHWA's rationale underlying the rule well illustrates that the industry recognizes that construction workers in highway/road construction work zones need protection against the hazard posed by moving traffic. The FHWA's recent mandatory standard for workers on federal-aid highways shows that struck-by hazards in highway/road construction work zones are well recognized by the construction industry. Furthermore, the standard indicates that a feasible means of addressing that hazard is the wearing of high-visibility apparel. Accordingly, high-visibility apparel is required under the General Duty Clause to protect employees exposed to the danger of being struck by public and construction traffic while working in highway/road construction work zones. Typically, workers in a highway/road work zone are exposed to that hazard most of the time.
Richard E. Fairfax, Acting Director
Directorate of Construction
129 CFR 1926.201(1) states:
In 2003, the MUTCD was revised to provide that "flaggers shall wear" high visibility apparel. (2003 Edition, November 20, 2003).
2 For work to 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."
3Section 5(a)(1) requires employers to provide their employees:
4 Final Rule for Worker Visibility, 71 Fed. Reg. 67792 (November 24, 2006).
5 The FHWA issued Part 634 pursuant to Public Law 109-59 (Aug. 10, 2005), which applies only to Federal-aid highways. However, the FHWA's reasoning makes clear that all employees who work near road traffic need the protection provided by high visibility garments.