August 3, 1999

Paul Resler
National Sales Manager
National Lightning Protection Corporation
4120 Brighton Blvd, Unit A-37
Denver, Colorado 80216

Re: Impalement hazards from rebar: §1926.701(b), rebar caps, lightning rods, and NLP "Flathead"

Dear Mr. Resler:

Thank you for your letter dated January 27 to the Occupational Safety and Health Administration (OSHA) Regional Office in San Francisco regarding your product, the "Flathead," and OSHA's construction standard that addresses impalement hazards from rebar. We also received your company's product literature citing 29 CFR 1926.701(b) and explaining that the Flathead is intended to protect employees from impalement. In addition, we were given a copy of a follow-up fax, dated February 11, from Bob Rapp of your company, all of which was forwarded from our San Francisco office on February 22. Accompanying this material was a request that our office explain whether several interpretation letters and memoranda expand §1926.701(b) to apply to impalement hazards from lightning rods. You specifically ask this with regard to a May 29, 1997 memorandum.

29 CFR 1926.701(b) applies only to rebar impalement hazards
The May 29, 1997 memo addresses the issue of whether small plastic rebar caps may be used to meet the requirements of 29 CFR 1926.701(b). That provision requires that, "all protruding reinforcing steel, onto and into which employees could fall, shall be guarded to eliminate the hazard of impalement." You point to a portion of that memo that you believe indicates that we have interpreted this provision to require protection from all sharp protruding objects, not just rebar.

The portion of the memo you refer to states:

The standard, 29 CFR 1926.701(b), states: "all protruding reinforcing steel, onto and into which employees could fall, shall be guarded to eliminate the hazard of impalement." The key words are "to eliminate the hazard of impalement." Exposure to impalement is always a consideration when employees are working above rebar or other sharp protrusions. The critical element when evaluating any job activity is the recognition or identification of impalement hazards and the exposure to employees. As you know, construction activities constantly change and contractors must remain aware of and provide protection from or alternative work practices to eliminate impalement hazards [emphasis not in original].

You have made particular reference to the portion of the underlined sentence where we referred to "other sharp protrusions." We did not state that §1926.701(b) applies to objects other than rebar. We observed that exposure to impalement from rebar or other sharp protrusions is a recognized hazard in the construction industry. The only impalement hazards addressed by §1926.701(b) are those from rebar.

Section 1926.25 and the General Duty clause generally requires protection from impalement hazards posed by other sharp objects
Section 1926.25(a) (Housekeeping) addresses impalement hazards from debris, including protruding nails in form and scrap lumber by requiring employers to keep the worksite clear of these.

With respect to impalement hazards not covered by that section, the General Duty Clause (section 5(a)(1)) of the Occupational Safety and Health Act requires employers to furnish a workplace which is free from recognized hazards which may cause or are likely to cause death or serious physical harm. Under the General Duty Clause, we generally consider employers to be required to protect employees exposed to the hazard of impalement on sharp objects. Where a lightning rod poses a recognized hazard of impalement and a there is a feasible means of protection, the employer is required to provide that protection.

Parameters to help employers assess impalement protection devices
OSHA neither approves nor endorses products. The variable working conditions at job sites and possible alterations or misapplication of an otherwise safe product could easily create a hazardous condition beyond the control of the manufacturer. However, where appropriate, we try to give some guidance to employers to help them assess whether products are appropriate to use to provide OSHA required protection.

In a January 5, 1997, memorandum from this office, we stated that we would consider protective devices (covers or wooden troughs) for rebar that are capable of withstanding at least 250 pounds dropped from a height of ten feet to be adequate to meet the §1926.701(b) rebar requirements. We would consider this an appropriate performance criterion for impalement protection devices for other sharp objects as well.

We note that your product literature indicates that your product meets the requirements of 29 CFR 1926.701(b). Since that standard applies only to rebar, your reference to it would be inappropriate if your product was for use only on lightning rods.

Sincerely,

Russell B. Swanson, Director
Directorate of Construction