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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.
February 4, 2004
Mr. Robert Kunz
400 Lincoln Avenue
Warwick, Rhode Island 02888
Re: Seat belts in construction: what are the OSHA responsibilities of an employer under §1926.601(b)(9) with respect to providing seat belts for workers whose size precludes their using seat belts that meet the Federal Motor Vehicle regulation incorporated by reference into the standard?
Dear Mr. Kunz:
This is in response to your letter dated March 14, 2003, to the Occupational Safety and Health Administration (OSHA). You ask about employer obligations to provide seatbelts under §1926.601(b)(9) of Subpart O. Your letter was forwarded to this office for handling on March 21, 2003. We apologize for the delay in responding.
We have paraphrased your question as follows:
Question: Section 1926.601(b)(9)1 imposes certain seat belt criteria for motor vehicles that operate on off-highway job sites. Specifically, that standard incorporates by reference 49 CFR Part 571 of the Federal Motor Vehicles Safety Standard, which provides for seat belt assemblies capable of adjusting to fit occupants that range in dimension and size from a 5th percentile adult female to a 95th percentile adult male. The weight and size criteria are set forth in 49 CFR 571.209S4.1(g)(3). You also noted that after-market seat belt assembly extenders are available, but indicated that these may void product warranties and alter the system's specifications.
Is an employer required to provide a seat belt that will work for drivers who are in excess of the 95th percentile criteria?
In 29 CFR Part 1926 Subpart O (Motor Vehicles, Mechanized Equipment, and Marine Operations), §1926.601 (Motor Vehicles) provides in part:
(a) Coverage. Motor vehicles as covered by this part are those vehicles that operate within an off-highway jobsite, not open to public traffic.
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(b) General requirements.
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(9) Seat belts and anchorages meeting the requirements of 49 CFR Part 571 (Department of Transportation, Federal Motor Vehicle Safety Standards) shall be installed in all motor vehicles. [Emphasis added.]
As indicated, the OSHA Regulation incorporates certain Department of Transportation (DOT) Federal Motor Vehicle Safety Standards. The pertinent provision, 49 CFR Part 571 Subpart B, §571.209 (Standard No. 290; Seat belt assemblies), states:
S1. Purpose and scope. This standard specifies requirements for seat belt assemblies.
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(g) Adjustment. (1) A ... seat belt assembly shall be capable of adjustment to fit occupants whose dimensions and weight range from those of a 5th-percentile adult female to those of a 95th- percentile adult male. [Emphasis added.]
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Similarly relevant in that Subpart, §571.3 (Definitions) provides:
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(b) Other definitions. As used in this chapter -
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95th-percentile adult male means a person possessing the dimensions and weight of the 95th percentile adult male specified in Public Health Service Publication No. 1000, Series 11, No. 8, "Weight, Height, and Selected Body Dimensions of Adults."2
By its terms, §1926.601(b)(9) does not require an employer to furnish a seatbelt for an employee who is beyond the 95th percentile adult male criterion. However, there is precedent for the applicability of other general construction standards to protect these employees.
Specifically, the Occupational Safety and Health Review Commission has stated:
Where a standard provides meaningful protection to employees beyond the protection afforded by another standard, there is no preemption.
In fact, another construction standard, §1926.95(a), does provide more protection to those workers at issue in your scenario.
Section 1926.95(a) Criteria for personal protective equipment of Subpart E (Personal Protective and Life Saving Equipment) provides:
Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barrier, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards or processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact. [Emphasis added.]
As noted by Administrative Law Judge Welch, the Occupational Safety and Health Review Commission has construed §1926.95(a) to include seat belts3 ...
it has been Commission precedent for almost 20 years that the language of §1926.95(a) encompasses seat belts.
In Ed Cheff d/b/a Ed Cheff Logging [citation omitted], the Commission considered whether seat belts are a form of protective equipment within the meaning of §1910.132(a), the general industry standard whose language is identical to that of §1926.95(a). The Commission held that seat belts are a form of protective equipment within the meaning of the standard, stating
"[W]efind no basis here to exclude seat belts from the category of protective equipment." [Citation omitted.]4
The Commission has also stated:5
The breadth of §1910.132(a) [and by implication, the identical §1926.95(a)] ... has caused us to hold that its application "depends on whether there is a condition that would be recognized as a hazard by a reasonable person familiar with the circumstances." [Citation omitted.]
The construction industry has long recognized the hazards associated with riding the motor vehicles specified in §1926.601 without seat belts.6 The Agency's adoption of §1926.601(b)(9) reflects that recognition. Further, an employee who is beyond the 95th percentile and cannot wear the seat belt that comes with the vehicle is exposed to the same hazard as any unbelted person covered by §1926.601(b)(9). Thus, the seat belts at issue are a required form of protective equipment within the meaning of §1926.95(a).
In addition, because the specific construction standard does not address the hazard at issue, the application of §1926.95(a) is not precluded by the specific construction standard. A requirement to provide vehicles equipped with seat belts that can be worn by employees beyond the 95th percentile is protection not otherwise available under §1926.601(b)(9). Thus, where feasible, vehicles covered by §1926.601 must be equipped with seat belts that can be worn by these employees.7
We note that included in the materials you submitted was information from two equipment manufacturers regarding their respective vehicles. One manufacturer indicated that seat belt extenders may be installed on its vehicle -- which would be a feasible means of meeting the requirement.
The other manufacturer indicated that it does not offer seat belt extender equipment for the vehicle in question, and cautioned that the belt, seat, and other related parts were designed with the 95th percentile requirement in mind (and that use of after-market parts may void the warranty, "depending on the design of the component and how it interacts with the vehicle"). We do not have sufficient information to definitively state that there is a feasible means of providing protection with respect to that vehicle.8
If you need additional information, please contact us by fax at: U.S. Department of Labor, OSHA, Directorate of Construction, Office of Construction Standards and Guidance, fax # 202-693-1689. You can also contact us by mail at the above office, Room N3468, 200 Constitution Avenue, N.W., Washington, D.C. 20210, although there will be a delay in our receiving correspondence by mail.
Russell B. Swanson, Director
Directorate of Construction
1 Some of the equipment you are concerned with may be covered by 1926.602 (Material handling equipment); since the seat belt criteria in that section are essentially identical to the criteria in 1926.601(b)(9), our answer is equally applicable to equipment covered by 1926.602. [back to text]
2 A table setting forth the dimensions of a 95th-percentile male is set forth in 49 CFR Section 571.209 S4(g)(3). [back to text]
3 Secretary of Labor v. R.P. Industries, Inc., No. 00-1289, 2001 WL 25795 (O.S.H.R.C. January 1, 2001). [back to text]
4 It should be noted that one of the cases quoted focused upon a situation where an employer failed to provide and require the use of seatbelts, while the other case focused upon an employer's failure to require the use of seat belts. Section 1926.95(a), by its terms, applies to both situations. [back to text]
5 Secretary of Labor v. Ed Cheff d/b/a Ed Cheff Logging, No. 77-2778, 1981 WL 18906 (O.S.H.R.C. May 29, 1981). [back to text]
6 OSHA adopted the identical predecessor provision, Section 1518.601(b)(9), in 1971. [back to text]
7 Note that the "General Duty Clause" (Section 5(a)(1)) of the Occupational Safety and Health Act that requires employees to "furnish ... each of [its] employees employment ... free from recognized hazards that are causing or are likely to cause death or serious physical harm ..." also requires the employer to provide seat belts in this scenario. [back to text]
8 Although we do not know the costs involved, a feasible option might include use of a seat belt extender if its installation were approved by a register professional engineer familiar with the equipment involved. [back to text]