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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 https://www.osha.gov.
May 11, 2004
Mr. Bradley M. Sant, Esq.
Vice President, Safety & Education
American Road & Transportation Builders Association
1010 Massachusetts Avenue, NW
Washington DC 20001
Re: Whether use of high-visibility warning garments by construction workers in highway work zones is required.
Dear Mr. Sant:
This is in response to your e-mails dated March 11, 2004, to the Occupational Safety and Health Administration (OSHA)'s Directorate of Construction. You asked for clarification on OSHA's policy regarding the Federal Highway Administration (FHWA)'s 2003 Manual of Uniform Traffic Control Devices (MUTCD) with regard to high-visibility apparel. We have paraphrased your questions as follows:
Question (1): In effect, the FHWA's Manual of Uniform Traffic Control Devices (MUTCD) has become a national benchmark for traffic control devices on all roads. In September 2002, OSHA amended its construction standards for signs, signals, and barricades in Subpart G of 29 CFR Part 19261 to incorporate use of the MUTCD -- either the 1988 Edition, Revision 3 (from 1993), or the "Millennium Edition" (published in December 2000). However, FHWA has now amended the MUTCD several times subsequent to issuance of the 1988 Edition, Revision 3 (from 1993), or the "Millennium Edition." Will OSHA promulgate further amendments and/or revisions to Subpart G to follow the FHWA amendments to the MUTCD, such as those regarding high-visibility apparel?
In the past, amendments to the MUTCD have been issued every few years, and substantial revisions came out over a decade or two. In the preamble to the final rule published on September 12, 2002 (at 67 FR 57723), amending Subpart G, OSHA explained that:
In the early 1970s, the FHWA assumed from ANSI responsibility for publishing the MUTCD. The FHWA substantially rewrites the MUTCD every 10 to 20 years, and amends it every two to three years. Until the Millennium Edition was published in December 2000, the most recent edition was the 1988 edition. The 1988 edition consisted of 10 parts, including part VI, "Standards and Guides for Traffic Controls for Street and Highway Construction, Maintenance, Utility, and Incident Management Operations." The FHWA substantially revised and reissued part VI in 1993 (Revision 3). There are substantial differences both in substance and format between Revision 3 and the 1971 MUTCD. The most recent edition of the MUTCD, the Millennium Edition published in December 2000, contains some substantive changes and a new, easier to use format. States are required to adopt the Millennium Edition or its equivalent by January 2003. [Emphasis added.]
Currently, OSHA has no plans to amend Subpart G. However, under OSHA's de minimis2 policy, compliance with more current DOT requirements, or with more current ANSI or other applicable nationally recognized consensus standards, is acceptable, so long as such standards are at least as protective as the OSHA requirement.
Question (2): Construction employees working on highway/road construction work zones often risk being struck by traffic. Do the OSHA standards require high-visibility apparel for these construction workers?
Section 1926.201(a) states:
Flaggers. Signaling by flaggers and the use of flaggers, including warning garments worn by flaggers shall conform to Part VI of the Manual on Uniform Traffic Control Devices, (1988 Edition, Revision 3 or the Millennium Edition), which are incorporated by reference in §1926.200(g)(2).
* * * * *
Under this provision, where the MUTCD requires the use of flaggers, they must be used. In addition, where they are used, the warning garments they wear must meet the MUTCD requirements.
Other than the use of flaggers, Subpart G does not address the circumstances in which it is necessary to provide warning garments to protect against the hazard posed by traffic.3 However, under Section 5(a)(1) of the Occupational Safety and Health Act, employers are required to furnish to their employees:
. . . . employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . .
It is well recognized in the construction industry that construction workers in highway/road construction work zones need to be protected from traffic. The MUTCD reflects industry practice with respect to identifying the types of situations where these workers need high-visibility warning garments. In such cases, Section 5(a)(1) requires the use of such garments.
[This document was edited on 10/19/09 to strike information that no longer reflects current OSHA policy. See the August 5, 2009 clarification letter.]
If you need additional information, please do not hesitate to 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 The amendments to Subpart G (§§1926.200-1926.203) were published in the September 12, 2002, Federal Register (at 67 FR 57722), effective on December 11, 2002. [ back to text ]
2 Under OSHA's de minimis policy, violations are those which have no direct or immediate relationship to safety or health are considered de minimis. De minimis violations of standards exist when an employer complies with the clear intent of the standard but deviates from its particular requirements in a manner that has no direct or immediate impact on the safety and health of workers. OSHA does not impose penalties or require correction of de minimis violations. [ back to text ]
Note that, in addition, for work in which 29 CFR Part 1926 Subpart P (Excavations) applies, §1926.651(d) requires that "employees exposed to public vehicular traffic shall be provided with, and shall wear, warning vests or other suitable garments marked with or made of reflectorized or high-visibility material." [ back to text ]