- Standard Number:
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.
June 24, 1992
MEMORANDUM FOR: MICHAEL G. CONNORS REGIONAL ADMINISTRATOR THROUGH: LEO CAREY, DIRECTOR OFFICE OF FIELD PROGRAMS FROM: PATRICIA K. CLARK, DIRECTOR DIRECTORATE OF COMPLIANCE PROGRAMS SUBJECT: Clarifications of Interpretations and Citation Policy on 29 CFR 1910.38 and 1910.157 Standards
This is in response to your October 23, 1991 memorandum for subject clarifications. Please accept our apology for the delay in response.
In your memorandum, you reference the Directorate of Compliance Programs' memorandum of March 5, 1991 to all Regional Administrators which provided subject guidance apparently inconsistent with guidance provided previously in the Directorate of Field Operations' memorandum of July 1, 1985 to the Regional Administrator of Region II. You are correct that the last paragraph in each of these references provides identical scenarios but different conclusions and citation recommendations, and that the most recent guidance does not rescind or supersede the previous guidance.
Also, in your memorandum you include two scenarios and question which of the subject standards should be cited, as follows:
Scenario #1: An employer provides fire extinguishers in the workplace, but indicates that they are not intended for employee use. The employer indicates that all employees would be required to evacuate the worksite during an emergency; however, the employer has an emergency action plan which does not meet all of the requirements of 1910.38(a) and (b), or completely lacks an emergency action plan. The provisions of 1910.157 do not require the implementation of a plan.
Question: Should citations for 1910.157(g) or 1910.38(a) and (b) be issued?
Scenario #2: An employer provides fire extinguishers in the workplace, and specific employees have been designated to use the equipment for incipient-stage fires only. The employer indicates that all other employees would be required to evacuate the area; however, no emergency action plan which meets the requirements of 1910.38(a) and (b) is provided for employees.
Question: Should citations for 1910.38(a) and (b) be issued for the lack of an emergency action plan for those employees who evacuate the area?
The following reply (which is consistent with the policy provided by the July 1, 1985 memorandum) is applicable to both questions.
An employer is considered to be in compliance with 1910.157 when he or she provides portable fire extinguishers, as specified, for the use of all his or her employees in the workplace or satisfies one of the other specified operations. These other specified options, either explicitly or implicitly, require the employer to have for his or her workplace an employee emergency action plan and a fire protection plan which meet the requirements of 1910.38.
When the employer has chosen or intends to pursue one of the other specified options, he or she shall be issued citations under 1910.38 rather than for deficiencies under 1910.157 for not having a written employee emergency action plan or a fire protection plan or for having an employee emergency action plan or a fire protection plan that does not meet all of the 1910.38 requirements.
Likewise, when the employer has chosen or intends to provide an emergency action plan and not the emergency response plan required by the provisions of 1910.120 (that is, 1910.120(l)(iii), 1910.120 (p)(8)(i), 1910.120(q)(1) and 1910.120(q)(11)(ii))) which reference 1910.38(a), he or she shall be issued citations under 1910.38 rather than for deficiencies under 1910.120 for not having a written employee emergency action plan or for having an employee emergency action plan that does not meet all of the 1910.38 requirements.
This citation policy is predicated on the Compliance Safety and Health Officer (CSHO) determining the employer's intention (that is, which option he or she has chosen or intends to pursue) to comply with 1910.157 and, when applicable, 1910.120. This determination shall be documented by the CSHO on the Narrative (OSHA-1A Form) used to record inspection related information and on the Worksheet (OSHA-1B Form) when citations are issued.
This citation policy supersedes the guidance provided by the March 5, 1991 memorandum addressing workplace applications subject to 1910.120 standards. Thank you for pointing out the policy discrepancy in the aforementioned memorandums.