Spotlight on Occupational Health and Safety

The interest of regulatory agencies tends to gravitate toward employers which have unusual challenges. Since mining operations and highway transportation are governed by other standards enforced by different administrative bodies, it should come as no surprise that the U.S. Department of Labor's Occupational Safety and Health Administration ("OSHA") keeps its attention focused on construction. 1186 of the 5700 workplace fatalities nationwide last year were in the construction industry, with approximately 40% arising from falls, while "struck by" and "caught in between" accidents involving wheeled or tracked equipment were next, followed by electrocutions. Federal OSHA chief Edwin G. Foulke Jr. has called for a meeting with the nation's largest residential contractors to address the problems which create such a disproportionate share of fatalities and to develop strategies to effect significant reductions.

Another reflection of this focus on the construction industry is found in three "standard interpretation letters" recently posted on the OSHA website. The first letter answers that age-old question, "When must protective measures be installed after a hole is created on a construction site?" The answer, while relying on the definition of "hole" as "a gap or void 2 inches (5.1 cm) or more in its least dimension, in a floor, roof, or other walking/working surface," ignores holes in the ground and concentrates on roofs, floors, and the like which are 6 feet or more above lower levels, and says that protective measures must be instituted "immediately," since "brevity of exposure to a hazard is not a defense to a failure to protect against the hazard." The other two letters discuss the need for guardrails on the interior side of two-point suspension scaffolds (they're required except under very narrow circumstances), and the use of fixed ladders constructed prior to the effective date of 29 C.F.R. 1926, Subpart X (January 14, 1991). The question which triggered these letters was not answered by OSHA for a year; it inquired what a painting contractor was to do when the local government which owned the jobsite would not allow the ladders on the supports of water tanks to be modified to bring them up to standard. The OSHA answer was for the contractor to ask for the retrofit and, if the request was refused, to implement both fall protections and training for employees. The moral is that writing letters asking for advice is a very unsatisfactory way of achieving solutions.

An even more troubling aspect of the interpretation letter approach is that the Occupational Safety and Health Review Commission has strongly indicated that interpretation letters will not suffice to inform employers of the requirements of an OSHA standard. The decision in question -- Secretary of Labor v. Beverly Healthcare-Hillview, issued on September 18, 2006 -- suggested that neither interpretation letters nor general language in compliance directives regarding bloodborne pathogens was enough to inform an employer of its obligations to pay for time and travel expenses of employees who were treated for needlestick injuries because of the lack of "ascertainable certainty." While the upshot of this decision (assuming it withstands court review) seems favorable to employers, it can be argued that an interpretation letter which creates a lower threshold than the literal language of a standard may not be a reliable defense or compliance guide.

All told, this area of the law remains one which deals with narrow distinctions and potentially conflicting applications - an excellent reason to utilize every resource available to you to achieve compliance with the obligation to "ensure, so far as possible, safe and healthful working conditions" for all employees. (This entry was published by Charlie Edwards of Womble Carlyle's labor and employment group.)