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OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
May 4, 1988
The Honorable Hamilton Fish, Jr.
House of Representatives
Washington, D.C. 20515
Dear Congressman Fish:
This is in response to your letter of April 7, enclosing correspondence from your constituent, Commissioner Lewis Knapp of East Fishkill, New York, expressing concern about the Occupational Safety and Health Administration's (OSHA) training requirements for volunteer fire company personnel.
As you may be aware, Section 3(5) of the Occupational Safety and Health Act of 1970 (the Act) specifically excludes the employees of State and local government from coverage under Federal OSHA. The Act does, however, encourage States to assume responsibility for their own occupational safety and health programs under a plan approved by the U.S. Department of Labor. Each State plan must include comprehensive coverage of public employees of the State and its political subdivisions that is "at least as effective" as the coverage which is applicable to the private sector employees. As you may know, the State of New York administers such a State plan, applicable only to public employees of the State and its political subdivisions, pursuant to its Public Employees Safety and Health (PESH) Act, Chapter 729 of the Law of 1980. (Private sector employment in New York remains under Federal OSHA authority.) Under its OSHA-approved State plan and in accordance with Section 27-a(4)(a) of the PESH Act, New York adopts and enforces occupational safety and health standards in the public sector which are identical to OSHA's.
The applicability of OSHA standard 29 CFR 1910.156, Fire Brigades, or the State's equivalent standard, to volunteer fire departments in a State such as New York, which administers a public-employee-only State plan, depends upon whether volunteer firefighters are deemed employees of State and local governments under applicable State law. As you are aware, in many communities, fire services are provided by volunteer companies. In some cases, these companies are established as independent, private sector entities. In others, where they are considered a component of State or local government, a volunteer working for a public or private entity in a State with an OSHA-approved State plan must be considered an employee under State law in order to be covered by that State's Fire Brigade standard. In a State with a State plan limited in scope to public employees, such as New York, OSHA would provide coverage to volunteer companies which have one or more paid employees and have been established as private sector entities.
A number of factors can influence whether a volunteer firefighter is considered an employee for purposes of State plan coverage. There are situations where volunteers receive pay for their time spent on-the-job, receive other types of remuneration, and/or are covered under Workers' Compensation provisions. Such factors as these impact on whether a volunteer is considered an employee. Consequently, each State plan is required to determine whether volunteers are deemed employees for the purpose of coverage. It is our understanding that counsel for the New York Labor Department has determined that volunteer firefighters are covered as public employees under the New York State plan.
Commissioner Knapp seems specifically concerned about long and frequent training classes and courses he implies are required by the OSHA and New York State firefighter/fire brigade standards. OSHA requires that all fire brigade members be provided with training at least annually. Firefighters who do interior structural fire fighting must be provided with an education session or training at least quarterly, which can be held in the fire station.
Structural fire fighting is one of the most dangerous jobs known to man; their work environment is often completely out of control and firefighters are called in to bring it under control and to a safe conclusion. OSHA believes that all firefighters who do interior structural fire fighting need to be properly trained to do their job safely. They need the proper tools and equipment and protective clothing to do this job safely. However, none of it is of much use if they have not been trained and drilled in its use. OSHA has found that firefighters, including volunteers, perform a much better job of providing this important community service when they are properly trained. All firefighters, including volunteers, need to understand the hazards of fire fighting and how it can be done safely to minimize the risks involved. Their well-being depends on it. We believe that this training does not cause firefighters to leave the service, but has the effect of keeping them in the fire service longer.
In light of the above information, I believe that the training requirements are not as onerous as Commissioner Knapp perceives them to be. We believe that the training required of firefighters is minimal and essential.
If you wish to obtain further information on the requirements of New York's PESH Program applicable to firefighters, you may contact the New York Department of Labor at the following address :
Robert F. Gollnick, Director
Division of Safety and Health
New York State Department of Labor
State Office Building - Campus 12
Albany, New York 12240
I hope this information will be of use to you in addressing your constituent's concern. If I may be of further assistance, please let me know.
John A. Pendergrass