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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.
November 1, 2002
Ms. Jennifer Shishido
State of Hawaii
Department of Labor and Industrial Relations
Hawaii Occupational Safety and Health Division
830 Punchbowl Street
Honolulu, Hawaii 96813
Dear Ms. Shishido:
Thank you for your letter to the Occupational Safety and Health Administration (OSHA). You requested further explanation of our March 28, 2002 letter to Mr. Scott King, which provided an interpretation of 29 CFR 1910.151, Medical Services and First Aid. Your questions have been restated below for clarity.
Question 1: Which ANSI standard does OSHA enforce, ANSI Z358.1-1990 or ANSI Z358.1-1998?
Reply: As stated in our letter to Mr. King, ANSI Z358.1 provides detailed information regarding the installation and operation of emergency eyewash and shower equipment. Therefore, OSHA has often referred employers to ANSI Z358.1 as a recognized source of guidance for protecting employees who are exposed to injurious corrosive materials.
ANSI standards become mandatory OSHA standards only if, and when, OSHA adopts them. Since OSHA has adopted neither the 1990 nor 1998 version of ANSI Z358.1 standard, OSHA does not enforce either standard.
Question 2: Is OSHA informing its compliance staff to not issue a citation when an employer's eyewash and shower are no longer "suitable," i.e., in conformance with ANSI Z358.1-1998? If so, what is the rationale, since the eyewash or shower would no longer be "suitable" according to industry standards?
Reply: OSHA is not telling its compliance staff to refrain from issuing a citation when an employer's eyewash and shower are unsuitable. If OSHA inspects a workplace and finds unsuitable facilities for quick drenching or flushing of the eyes and body, a citation under 29 CFR 1910.151(c) would be issued. When determining whether the eyewash or shower facilities are suitable given the circumstances of a particular worksite, OSHA may refer to the most recent consensus standard regarding eyewash or shower equipment, which would be the 1998 version of ANSI Z358.1, as well as other recognized medical, technical and industrial hygiene sources.
Question 3: Will OSHA still use the general duty clause to cite consensus standards?
Reply: In situations where OSHA has not adopted a specific safety and health standard, Section 5(a)(1), the general duty clause of the Occupational Safety and Health Act of 1970 (OSH Act) may be applicable. Section 5(a)(1) states, "Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees."
A consensus standard may serve as evidence of industry recognition of a hazard. However, with respect to eyewash and shower facilities, OSHA would issue a citation under 29 CFR 1910.151(c), if the Agency concluded that the facilities were unsuitable in a particular situation. OSHA does not issue a citation pursuant to the general duty clause where an existing standard addresses the relevant hazard.
Question 4: Is OSHA saying that an unsuitable eyewash and shower would not be cited as serious?
Reply: If an eyewash or shower is considered to be unsuitable, a serious citation could be issued. The classification of the violation would have to be made on a case-by-case basis. If the Agency concluded that the failure to provide suitable eyewash or shower facilities presented a substantial probability that death or serious harm could result should an employee be exposed to a corrosive material in the workplace, and the Agency concluded that the employer "knew" of the unsuitable facilities, the agency would issue a "serious" violation under Section 17(k) of the OSH Act.
Thank you for your interest in occupational safety and health. If you have further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.
John L. Henshaw