OSHA’s Confusion on PPE is reflected in the ruling on warning vests

In highway work zones, workers other than flaggers are at risk of being run over by construction vehicles and should wear high-visibility reflective clothing, according to a ruling (2006 OSHRC No. 23) issued in November by the Occupational Safety and Health Review Commission. However, OSHA cannot cite employers who do not provide and require the use of such clothing (OSHRC).

It overruled a previous judgment by Administrative Law Judge Ken S. Welsch on a dispute involving the Ruhlin Company in Ohio, a LIUNA-affiliated signatory contractor. OSHA had issued a citation to the firm after a passing compliance inspector noticed that nine of its employees were not wearing bright vests while operating in its highway work zone. As a result of the company’s fine of $2,000, the OSH Act allows it to appeal to an administrative law judge and then to the three-member OSHRC, which has the power to overturn fines.

Reflective vests “function as a warning signal” rather than providing genuine protection against danger, according to the Commission’s finding, which is consistent with the obligatory PPE requirement for construction (Section 1926.95(a)). The following is the section’s text:

In the event that a worker is exposed to a hazard that could result in injury or impairment in the worker’s ability to perform his or her job, he or she must be provided with protective equipment, including eye, face, head, and extremity protection, as well as protective clothing and respiratory devices, in order to protect the worker from harm.
Unless flaggers are working outside of the cones and barriers that define and protect a work zone from protruding motorists, reflective jackets do not offer the sort of shield or barrier to risks anticipated in the standard, the commissioners said. Finally, OSHA’s alternative charge of general duty clause (Section 5(a)) mandated that they wear the vests (1).

Using the Secretary of Labor’s 2004 standard interpretation, administrative law judge Welsch had affirmed Ruhlin’s citation and punishment under 5(a)(1):

A well-known fact in the building trade is the necessity of providing safety barriers for construction employees working near busy highways or roads under construction. Workers in high-hazard environments require high visibility warning clothing, and the MUTCD acknowledges that need. Section 5(a)(1) mandates the wearing of appropriate clothing in these situations.
An expert’s testimony under 5(a)(1) strengthened Welsch’s opinion that, even though reflective vests provide no additional protection against motorists for workers inside a work zone (as they do for flaggers outside), the additional protection they provide against struck-bys involving construction equipment inside the work zone is nonetheless significant. As a result, he determined that the vests actually function as barriers and the Secretary was fair in declaring that the vests are necessary under the general duty provision. The standard interpretation was published in 2004 and the industry was given reasonable notice of the new obligation, he added.

Although OSHA’s own Field Inspection Reference Manual (FIRM) specifically specifies, “Section 5(a)(1) shall not be utilized to enforce’should’ requirements,” Ruhlin’s attorneys contended that the general obligation provision cannot be used as the foundation of an enforcement citation. This interpretation, the business contended, muddies the waters and does not offer fair notice of a change in its need to require vests in the work zone.

Ruhlin was correct, according to the OSHRC, which wrote:

Worker’s near to the motor vehicle traveled (sic) path should wear bright, highly-visible attire, according to the MUTCD. There is no doubt about it: Section 5(a)(1) does not compel Ruhlin to utilize high-visibility warning garments because the terminology used here is discretionary rather than mandatory. As a result, Ruhlin might have reasonably decided that its employees were not in “the sort of environment” where such garments were needed.

As a result, Ruhlin’s citation was invalidated and the OSHRC’s sanction was revoked.

Instead of following the OSH Act’s procedures for rulemaking, the Commission criticised the Secretary of Labor for her “attempt[ing] to (impose) a warning clothing requirement under the cover of standard interpretation.” OSHA can disregard precedents or practices (in this case, the omission of warning vests as PPE in the construction standard), but “before doing so it must supply a’reasonable analysis indicating that prior policies and standards are deliberately changed, not casually ignored,'” according to a 2004 D.C. Circuit Court of Appeals decision.

After finding that “the sort of scenario” required reflective vests was unclear, the OSHRC also concluded that the Secretary’s interpretation did not meet the Court’s “reasonable analysis” criteria and, consequently, did not comply with rulemaking provisions of the OSH Act. Until a comprehensive review of OSHA’s Personal Protective Equipment (PPE) standard is completed, it appears that OSHA cannot mandate the use of reflective vests in work zones. OSHA’s reaction to the decision is still up in the air.