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Frequently Asked Questions:
Various Topics

  1. How is 1910.157, Portable Fire Extinguishers, applied with respect to 1910.38, Emergency Action Plans?
  2. What if an employee declines an audiometric test?
  3. What is the liability for transferring/maintaining medical records when there is no successor employer?
  4. What is the coverage of state employees under the OSHAct?
  5. When and under what conditions is the 5(a)(1)general duty clause used?


How is 1910.157, Portable Fire Extinguishers, applied with respect to 1910.38, Emergency Action Plans?

Employers are generally required by 29 CFR 1910 to provide portable fire extinguishing equipment for use in fighting incipient stage fires in the workplace. 29 CFR 1910.157, however, provides alternatives for employers who do not want their employees to fight incipient stage fires in the workplace. Employers who opt for the evacuation of all or most employees to a safe area do not have to comply with certain requirements of 1910.157, depending on the option chosen. These options are:
  1. The employer evacuates all employees to safety when a fire occurs [1910.157(b)(1)]: Employers who select this option are relieved from compliance with 1910.157 unless a specific standard in part 1910 requires that portable fire extinguishers be provided. If the employer selects this option, compliance with 1910.38(a) and (b) is required through 1910.157(b)(1).

  2. The employer evacuates all employees except those designated to use portable fire extinguishers [1910.157(b)(2)]: Employers who select this option need not comply with the distribution requirements of 1910.157(d). This option allows for the employer to distribute extinguishers in a manner such that they are available to the employees designated to fight incipient stage fires. If the employer selects this option, compliance with 1910.38(a) is required through 1910.157(b)(2).

  3. The employer keeps portable fire extinguishers in the workplace but does not want employees fighting fires and therefore evacuates the employees to safety [1910.157(a)]: OSHA recognizes that portable fire extinguishers may be required in the workplace by other organizations (e. g., insurance companies, local fire departments, etc.). Portable fire extinguishers that are not intended for employee use may still pose a hazard if they are not properly maintained. Employers who select this option must comply only with the maintenance, inspection, and testing requirements in paragraphs (e) and (f) of 1910.157.
Employers who do not select any of these options but instead provide portable fire extinguishers for use by any employee to use in fighting incipient stage fires must comply with 1910.157 in its entirety. Employees who provide portable fire extinguishers for employee use must provide an educational program to familiarize all employees with the general principles of fire extinguisher use [1910.157(g)(1) and (g)(2)]. Employees who are expected to use portable fire extinguishers must be provided with "hands on" training in the use of the fire extinguishing equipment [1910.157(g)(3)]. If the employer chooses to comply with all of 1910.157, there is no requirement to comply with 1910.38.

Reference Interpretation and Compliance Letters:
What if an employee declines an audiometric test?

OSHA's Noise standard requires only thataudiometric testing be made available to all employees whose exposures equal or exceed an 8-hour time-weighted average of 85 dBA. On the other hand, the standard does not prohibit an employer from having a company rule that employees submit to audiometric testing. You should be aware, however, that the Americans With Disabilities Act (ADA) places certain limitations on employer required medical examinations. Among other things, such examinations must be shown to be job related and consistent with business necessity.

Reference Interpretation and Compliance Letters:

What is the liability for transferring/maintaining medical records when there is no successor employer?


The Code for Federal Regulations, 29 CFR 1910.1020, Access to Employee Exposure and Medical Records outlines the correct process of managing employee records. According to that regulation, whenever an employer either is ceasing to do business and there is no successor employer to receive and maintain the records, or intends to dispose of any records required to be preserved for at least thirty (30) years, the employer shall do one of two things. An employer must transfer the records to the Director of the National Institute for Occupational Safety and Health (NIOSH) or they must notify the Director of NIOSH in writing of the impending disposal of records at least three (3) months prior to the disposal of the records. Depending on the content of the OSHA records, you may wish to share the information in them with the specific employee to whom they belong before transfer or disposal.

Reference Interpretation and Compliance Letters:
What is the coverage of state employeesunder the OSHAct?

Section (3)(5) of the Occupational Safety and Health Act of 1970 specifically excludes Federal OSHA's authority over employees of State and local government. The Act encourages States to assume responsibility for occupational safety and health programs under the State's own plan, which must be approved by the US Department of Labor. Each State-plan must include coverage of public employees of the State, and it must be "at least as effective" as Federal OSHA's protection of private sector employees.

Reference Interpretation and Compliance Letters:
When and under what conditions is the 5(a)(1)general duty clause used?

...[I]n cases where a particular hazard is not addressed by any OSHA standard, the general duty clause may be cited. The general duty clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, applies to all employers and requires each employer to provide employees with a place of employment which is free of recognized hazards that may cause death or serious physical harm. Section 5(a)(1) citations must of course meet the requirements outlined in OSHA's Field Inspection Reference Manual (FIRM) Chapter III. C., and will only be issued where there is a serious and recognized hazard in the workplace which can be feasibly abated.

Reference Interpretation and Compliance Letters: