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Standard Interpretations
07/25/2003 - General Duty Clause (5(a)(1)) citations on multi-employer worksites;NFPA 70E electrical safety requirements and personal protective equipment. |
Standard Interpretations - Table of Contents |
| • Standard Number: | 1926.402(a); 1910.132; 1910.335; 1926.403; 1926.404; 1926.405; 1926.406; 1926.407; 1926.408; 1910.303(f); 1926.403(h); 1910.12 |
July 25, 2003 James H. Brown Director of Safety and Health Associated General Contractors of Indiana, Inc. 1050 Market Tower, 10 West Market Street Indianapolis, IN 46204 Re: Relevance of NFPA 70E industry consensus standard to OSHA requirements; whether OSHA requirements apply to owners Dear Mr. Brown: This is in response to your March 15, 2002, letter asking for clarification of several issues concerning the Occupational Safety and Health Administration's (OSHA) multi-employer citation policy, owner responsibilities, National Fire Protection Association (NFPA) standard 70E, and several OSHA standards. We apologize for the long delay in providing this response. All your questions involve the NFPA 70E standard, which is one of many industry consensus standards developed by the National Fire Protection Association. NFPA 70E, which is titled "Electrical Safety Requirements for Employee Workplaces," is the NFPA's consensus standard for workplace electrical safety. It covers employee protection from electrical hazards including shock, arc blasts, explosions initiated by electricity, outside conductors, etc. We have paraphrased your questions as follows: Question (1): Is a general contractor who is engaged in construction work required to oversee a subcontractor's compliance with NFPA 70E under Section 5(a)(1) (General Duty Clause) of the OSHAct and OSHA's multi-employer citation policy? Answer Summary of the Multi-employer Citation Policy OSHA's multi-employer citation policy is described in compliance directive CPL 2-0.124.1 Under the policy, there are circumstances where more than one employer may be cited for a violation of an OSHA standard, and where an employer may be held responsible for a hazard even though none of its own employees were exposed to it. Compliance officers must use a two-step analysis to determine if an employer should be cited for a hazardous condition. The first step is to determine if the employer has responsibilities with respect to OSHA requirements. This is evaluated based on the employer's role at the worksite. There are four employer role categories: (1) "exposing" - an employer whose own employees are exposed to the hazard; (2) "creating" - an employer that creates a hazard to which a different employer's employees are exposed; (3) "correcting" - an employer that has been brought in specifically to correct hazards; and (4) "controlling" - an employer with general supervisory authority over the worksite with the power to have safety and health violations corrected. If an employer fits one or more of these categories, the compliance officer must go to step two: determining if the employer took sufficient steps to meet its obligations. Only if insufficient measures were taken, may a citation be issued. The directive emphasizes that the multi-employer citation policy is not one of strict liability. It also states that a lesser degree of care is required of a controlling employer than that of the other categories to prevent/discover hazards. To help compliance officers determine if a controlling employer has met its responsibilities, the directive outlines specific factors to evaluate. For example, to assess whether periodic inspections of appropriate frequency were made, compliance officers are directed to consider factors such as the scale of the project, nature and pace of the work, and the subcontractors' safety history. General Duty Clause and the Multi-employer Citation Policy Section 5(a)(1) of the Occupational Safety and Health Act requires an employer to furnish to its employees: employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . .However, as stated in the multi-employer citation policy compliance directive, only exposing employers can be cited for General Duty Clause violations.Therefore, citations based on a failure to meet a General Duty Clause requirement can only be issued to an "exposing" employer - an employer whose own employees were exposed to the hazard. So, for example, an employer cannot be cited in its role as a "controlling employer" for exposure of subcontractor employees to a General Duty Clause violation. Industry Consensus Standard NFPA 70E With respect to the General Duty Clause, industry consensus standards may be evidence that a hazard is "recognized" and that there is a feasible means of correcting such a hazard. However, as explained above, NFPA 70E is not relevant to assessing a controlling employer's duties under OSHA's multi-employer citation policy, since controlling employers are not responsible for overseeing their subcontractors' compliance with General Duty Clause responsibilities.2 A controlling employer engaged in construction work does have obligations regarding 29 CFR Part 1926 Subpart K (Electrical) under the multi-employer citation policy.3 Question (2): I note that OSHA has not incorporated the personal protective equipment portions of NFPA 70E by reference in §1910.132 (personal protective equipment, general requirements) or §1910.335 (safeguards for personal protection). Does an employer have an obligation under the General Duty Clause to ensure that its own employees comply with personal protective equipment requirements in NFPA 70E? Answer These provisions are written in general terms, requiring, for example, that personal protective equipment be provided "where necessary by reason of hazards..." (§1910.132(a)), and requiring the employer to select equipment "that will protect the affected employee from the hazards...." (§1910.132(d)(1)). Also, §1910.132(c) requires the equipment to "be of safe design and construction for the work performed." Similarly, §1910.335 contains requirements such as the provision and use of "electrical protective equipment that is appropriate for the specific parts of the body to be protected and the work to be performed (§1910.335(a)(i)). Industry consensus standards, such as NFPA 70E, can be used by employers as guides to making the assessments and equipment selections required by the standard. Similarly, in OSHA enforcement actions, they can be used as evidence of whether the employer acted reasonably. Under §1910.135, the employer must ensure that affected employees wear a protective helmet that meets either the applicable ANSI Z89.1 standard or a helmet that the employer demonstrates "to be equally effective." If an employer demonstrated that NFPA 70E contains criteria for protective helmets regarding protection against falling objects and electrical shock that is equal to or more stringent than the applicable ANSI Z89.1 standard, and a helmet met the NFPA 70E criteria, the employer could use that to demonstrate that the helmet is "equally effective." Question (3)(a): Can an employer be cited for violating an OSHA requirement for personal fall protection (PPE) where a properly trained employee decides not to wear the PPE? Answer Employee misconduct is an "affirmative defense" 4 to a failure to meet the requirements of an OSHA requirement. To establish the defense, the employer must be able to show that: (a) the violative condition was unknown to the employer; (b) the employer had a method of detecting violations and an effective enforcement policy when violations are discovered; and (c) the employee's action was in violation of an adequate employer work rule which was effectively communicated and uniformly enforced. Therefore, if the employer can show that it did not know (and reasonably could not have known) that the employee was not wearing the PPE, that it had an adequate work rule requiring the employee to wear the PPE, and that the work rule was effectively communicated and uniformly enforced, the employer would not be responsible under OSHA requirements for the violation. Question (3)(b): Would the employer be liable in a private lawsuit in that situation? Answer It is not within the purview of this office to provide guidance regarding tort, workers' compensation, or other private action legal liability. Question (4): Are there OSHA standards that state that an owner of a work facility must identify and mark electrical hazards for contractors? Answer OSHA requirements apply to employers; generally they do not apply to owners with no employees. Owners that also are employers are subject to OSHA requirements depending on the activities performed. There are no OSHA standards that specifically require owners to post notice of electrical hazards for contractors performing construction work at the owners' facilities.5 However, it is worth noting that both OSHA general industry and construction standards require the durable and legible marking of disconnecting means and circuits. Section 29 CFR 1910.303(f) requires that: …Each service, feeder, and branch circuit, at its disconnecting means or overcurrent device, shall be legibly marked to indicate its purpose, unless located and arranged so the purpose is evident. These markings shall be of sufficient durability to withstand the environment involved. Section 29 CFR 1926.403(h) contains an identical provision. Question (5): How can I distinguish between electrical work that is considered "construction work" and electrical work that is considered "general industry work"? Answer 29 CFR 1910.12 sets out the scope of OSHA construction standards. Section 1910.12(a) provides that: The standards prescribed in part 1926 of this chapter … shall apply … to every employment and place of employment of every employee engaged in construction work.Section 1910.12(b) defines construction work as follows: Construction work means work for construction, alteration, and/or repair, including painting and decorating.Section 1910.12(d) adds that: 'construction work' includes the erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of the existing transmission and distribution lines and equipment.In our February 1, 1999, letter to Mr. Randall A. Tindell, we discussed in detail, and gave specific examples of, the distinction between general industry and construction work. The Tindell letter can be viewed on the Internet at http://www.osha.gov (We have also enclosed a copy of the Tindell letter for your reference.) If the work falls within OSHA's jurisdiction and is considered construction work, then 29 CFR Part 1926 Subparts K (Electrical) or V (Power Transmission and Distribution) might apply. However, since you have not specified the type of "electrical work" involved, we cannot advise you on whether one of these standards would apply in your situation. If you need any additional information, please 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 1The policy can be viewed on OSHA's website at: http://www.osha.gov/OshDoc/Directive_pdf/CPL_2-0_124.pdf. [ back to text ] 2However, if a controlling employer's own employees were exposed to a hazard, it would also be in the role of an exposing employer and would have General Duty Clause obligations with respect to its own employees. [ back to text ] 3Note that in §1926.402(a) there is the following statement: If the electrical installation is made in accordance with the National Electrical Code ANSI/NFPA 70-1984 . . . it will be deemed to be in compliance with §§1926.403 through 1926.408, except for §§1926.404(b)(1) and 1926.405(a)(2)(ii)(E), (F), (G) and (J). [ back to text ] 4An affirmative defense is a defense which, if established by the employer, will excuse the employer from a violation. [ back to text ] 5Note, though, that §1926.21(b)(2) requires the employer to "Instruct each employee in the recognition and avoidance of unsafe conditions. . . ." [ back to text ] |
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