Regulations, Interpretations and Tribulations

By Joe O'Connor | Feb 15, 2003
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In the many articles I have written about safety and health, I have unthinkingly referred to a number of documents, such as the Occupational Safety and Health (OSH) Act, Code of Federal Regulations (CFR), Interpretations, etc. The astute editor to whom I submitted the article would ask me for an explanation. I came to realize it is important to understand the role these references play in an employer’s compliance strategy.

The foundation for safety is the OSH Act of 1970. It serves as the basic premise for compliance. In fact, employers have been cited for violating the law itself under Section 5(a)(1) or the “General Duty clause.” This section of the act states that employers must provide a workplace free of hazards.

Because an agency was needed to enforce the law, the act also established the Occupational Safety and Health Administration (OSHA), the National Institute for Occupational Safety and Health (NIOSH), and the Occupational Safety and Health Review Commission (OSHRC). NIOSH is the research arm. OSHRC is part of the judicial process for evaluating an employer’s appeal to a citation. The portions of the act pertaining to OSHA set parameters for their authority and directed them to establish standards.

The OSHA standards can be found in the Code of Federal Regulations (CFR) which is a series of rules established by various federal agencies. There are 50 CFR titles, each of which bears the name of the issuing agency and is divided into parts covering specific areas. OSHA falls under the Department of Labor, CFR Title 29. Part 1926 contains OSHA’s construction standards. General industry requirements are in Part 1910. A given standard is identified by part and standard number. For example, the electrical standard for wiring methods, components, and equipment design for general use is 1926.405.

Generally speaking, a contractor is not subject to the requirements of Part 1910. However, some regulations may apply to both industries depending upon conditions. For example, if work being performed is maintenance rather than construction, a contractor must follow the regulations in 1910. Electrical contractors should also be aware that the CFR might incorporate by references a consensus standard. By doing so, compliance with that standard becomes law. For example, the CFR American National Standard Institute for Eye and Face Protection, Z87. 1-1968. Eyewear must meet Z87.1 specifications.

Before a standard is promulgated, the public must be allowed to comment, and OSHA provides an appropriate response. When this is complete, the final rule will appear in the Federal Register, a daily periodical containing general and permanent rules published by the executive departments and agencies of the federal government. When published, a rule contains a preamble with background information, including OSHA’s response to comments. This often provides the clarification needed for compliance.

After a standard is published, OSHA will develop a Compliance Directive. It will be identified numerically and begin with the letters CPL. The directive provides Compliance Safety and Health Officers (CSHO) with instructions on enforcement. Knowing these procedures can be useful in predicting what the CSHO will focus on during inspection. However, be aware the CSHO is not restricted from enforcing parts of the standard not referenced in the document.

Frequently, employers and organizations write to OSHA questioning the application of a rule to a given circumstance. OSHA then issues an interpretation. It may clarify enforcement in that situation, offer a general guide, or modify enforcement of a standard. For example, on the need for first-aid trained individuals on site when medical assistance is not within a reasonable distance, interpretations have created the four-minute rule. Another interpretation, issued in response to the National Association of Home Builders, modified enforcement of the Six-Foot Fall Protection rule, which offered, under certain circumstances during residential construction, that employees may work at levels up to 25 feet without fall protection.

Use caution when trying to apply an interpretation. They are often specific to a given circumstance or very similar conditions. Other variables on your job site may not allow it to be used for your situation.

Finally, when compliance goes awry and an employer still feels OSHA has not properly applied their rules, an appeal or Notice of Contest can be filed with the OSHRC. Decisions from this process often set precedents for future enforcement and may cause OSHA to modify their activity. As a result of a recent OSHRC decision, OSHA lost its case on a citation to an employer for not purchasing safety equipment and has begun development of a new standard that clarifies purchasing responsibility.

In review, regardless of rules or clarifications, the ultimate goal is to provide a safe workplace. The importance of the documentation described here merely acknowledges that language is often ambiguous. Understanding OSHA’s procedures and documents allows you to prove compliance with the ultimate goal if not with a stated rule. EC

O’CONNOR is with Intec, a safety consulting, training and publishing firm that offers on-site assistance and produces manuals, training videos and software for contractors. Based in Waverly, Pa., he can be reached at 607.624.7159 or [email protected].

About The Author

Joe O'Connor is with Intec, a safety consulting, training and publishing firm that offers on-site assistance and produces manuals, training videos and software for contractors. Based in Waverly, Pa., he can be reached at 607.624.7159 or [email protected].

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