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 https://www.osha.gov.

December 5, 1994

FROM:                   JOHN B. MILES, JR.,  DIRECTOR
SUBJECT:                Corrective Change to the Lead in Construction
                        Compliance Directive, CPL 2-2.58

This memorandum provides a corrective change to OSHA Instruction CPL 2-2.58, Lead Exposure In Construction (29 CFR 1926.62); Interim Final Rule--Inspection and Compliance Procedures. This corrective change applies to paragraph (j)(1)(ii) on pages A-24 and A-25, under the Inspection Guidance, Medical Surveillance section in Appendix A.

Regional Administrators (RAs) shall explain the content of this memorandum to the State designers as required. States are to follow the Federal Program Change language in OSHA Instruction CPL 2-2.58 in the implementation of this change.

The paragraph in Appendix A presently reads as follows:

... Employees with an exposure at or above the action level are entitled to coverage in the medical surveillance program under paragraph (j)(2) and (j)(3), as soon as the employer has reason to believe that the employee will be so exposed for more than 30 days in any consecutive months. Medical surveillance must be made available no later than the 31st day of performing work where employee exposures are at or above the action level within that period. Where the employer anticipates employee exposure, the medical surveillance program shall include a pre-assignment medical examination consistent with the requirements of Appendix C of 29 CFR 1926.62 and 29 CFR 1910.1025...

In a recent application of this guidance during an enforcement action, OSHA determined that this compliance guidance inappropriately directs the CSHO in enforcing the standard's requirement. The intent of the provision of the medical surveillance program for those employees exposed to lead at or above the action level (AL) for more than 30 days in any consecutive 12 months, whether anticipated or established, does not impose an obligation on the employer to make available periodic biological medical monitoring no later than the 31st day of an employee's exposure. In addition, the standard has no requirement for a pre-assignment medical examination.

Therefore, the paragraph in Appendix A is being amended to provide enforcement guidance consistent with the intent of the standard. The change to the compliance directive is as follows:

... Employees with an exposure at or above the action level (AL) for more than 30 days in any consecutive 12 months must be provided coverage in the medical surveillance program required under paragraph (j)(2) and (j)(3). The medical surveillance program consists of periodic biological monitoring and a medical examination. The employer is required to make available annual medical examinations to employees for whom a blood sampling test conducted at any time during the preceding 12 months indicates a blood lead level at or above 40 ug/dl, even if the elevated blood lead level occurred prior to employment with the current employer.

Please incorporate these changes into the compliance directive. Should you have any questions concerning this matter, please contact the Office of Health Compliance Assistance at (202) 219-8036.