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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 17, 2004
Mr. Rhoni Lahn
5708 CR 73 #37
Robstown, Texas 78380
Re: Whether the requirement to use hard hats and/or eye protection depends on a worker's distance from a construction operation?
Dear Mr. Lahn:
This is in response to your fax dated September 6, 2004, to the Directorate of Construction of the Occupational Safety and Health Administration (OSHA). You ask about requirements in the construction Personal Protective and Life Saving Equipment provisions, 29 CFR Part 1926 Subpart E, with specific regard to hard hats and/or eye protection.
We have paraphrased your questions as follows:
Question (1) We are construction employees engaged in a pipeline removal project. During the course of this work, we use various trenching equipment, such as backhoes. While in the immediate vicinity of such equipment, we use hard hats, steel-toe shoes, and eye protection pursuant to §1926.100(a) and other provisions. Do the construction standards contain criteria, based upon distance from operating equipment, that limit the applicability of the requirement to use hard hats?
Answer: (1) In 29 CFR Part 1926 Subpart E (Personal Protective and Life Saving Equipment), §1926.95 (Criteria for personal protective equipment) provides:
(a) Application. Protective equipment, including personal protective equipment for eyes, face, and head, and extremities, protective shields and barriers, shall be provided, used, and maintained...wherever it is necessary by reason of hazards of 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... physical contact. [Emphasis added.]
Section 1926.100 (Head protection) states:
(a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets. [Emphasis added.]
By their terms, neither of the above-noted provisions' conditions the applicability of the requirement to use protective helmets on specific distances from operating equipment.
In assessing the applicability of these provisions, the courts1 have focused upon the express words of the standard as well as the purpose of the Occupational Safety and Health Act. In Donovan v. Adams Steel Erection, Inc., the Court emphasized that:
...by its express language, the standard applies whenever employees are exposed to "a possible danger of head injury." [Emphasis added.]
The Court continued:
The legislative history makes clear that "death and disability prevention is the primary intent" of the Act. [Citation omitted.] The Act is remedial in nature and "does not wait for an employee to die or become injured. It authorizes the promulgation of health and safety standards...in the hope that these will act to prevent deaths or injuries from ever occurring. [citation omitted]... Imminent risk of injury or death to employees should not be required before the Secretary can compel protective action. [Citation omitted.]
The Court concluded that accessibility to a "zone of danger" was sufficient to sustain a citation for failure to use a protective helmet.
Under these standards, an employer must initially evaluate the activities of its employees and determine whether their presence in such a zone of danger is reasonably foreseeable. Such employees must use protective helmets.
Note that variables that may affect the application of the requirement in §1926.100(a) are not limited to head hazards posed by your specific trenching equipment. For example, the requirement may arise by virtue of an employee's location near other equipment, such as a crane hoisting building materials.
Also, note that OSHA standards set minimum safety and health requirements; they do not prohibit employers from adopting more stringent requirements.
Question (2): As a follow-up to Question (1), would hard hat and/or eye protection be required when employees are seated in a vehicle "near the work in progress"?
Answer: (2) Provisions governing the use of protective helmets are set forth under Question (1). Section 1926.95(a), also quoted above, references personal protective equipment for eyes and provides for their use:
...whenever it is necessary by reason of hazards... encountered in a manner capable of causing injury... through... physical contact.
Further, §1926.102(a) in conjunction with §1926.28(a) more specifically identifies the hazards that may necessitate the use of eye protection equipment.
[t]he employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees. [Emphasis added.]
Section 1926.102(a)(1) (Eye and face protection) indicates "the need for using" eye protection arises:
...when machines or operations present potential eye or face injury from physical, chemical, or radiation agents. [Emphasis added.]
Again, these provisions on eye protection (as well as those previously discussed provisions on head protection) focus on the potential for injury on a construction work site. The same above-described preliminary evaluation by the employer to determine the foreseeability of an employee being in a "zone of danger" is required to determine whether the use of this protective equipment is required.
Typically, the cab of a vehicle will provide more protection from overhead hazards than a hard hat, and so a hard hat would generally not be required while sitting in the cab of a vehicle. Whether eye protection would be required while in the vehicle would depend to a large extent on whether the windows were open and, if so, if the construction operations posed a foreseeable risk of eye or face injury.
If you need any 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 See, e.g., Donovan v. Adams Steel Erection, Inc., 766 F. 2d 804 (3rd Cir., July 5, 1995). [ back to text ]