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.

January 31, 2006

James Foster
General Manager
7347 Spencer Lake Road
Medina, Ohio 44256

Re: Highway work zones; reflective/warning vests; flaggers; protection of off-duty police officers working as flaggers; §1926.201(a).

Dear Mr. Foster:

This is in response to your May 5, 2005 letter addressed to the Occupational Safety and Health Administration. You asked for information regarding the requirements for warning garments worn by police officers acting as flag persons. We apologize for the delay in responding.

We have paraphrased your question as follows:

Question: Do OSHA requirements mandate that a uniformed police officer engaged in directing traffic around a coned construction work area wear high-visibility warning garments?

Answer: Whether an off-duty police officer engaged in traffic control must be protected in accordance with OSHA requirements depends on who is considered the officer's employer while doing the traffic control work. The Occupational Safety and Health Act, 29 U.S.C. 652 defines "employer" and "employee" as follows:

(5) The term "employer" means a person engaged in a business affecting commerce who has employees, but does not include the United States (not including the United States Postal Service) or any State or political subdivision of a State.
(6) The term "employee" means an employee of an employer who is employed in a business of his employer which affects commerce.

During the time that the officer is not serving as an employee of a "political subdivision of a State," such as a local government, or by one of the other exempted entities listed above, and is instead serving as an employee of a non-governmental employer (such as a construction company), OSHA requirements would be applicable. One of those requirements, 29 CFR 1926.201(a), states:

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 ["MUTCD"], (1998 Edition, Revision 3 or the Millennium Edition), which are incorporated by reference in §1926.200(g)(2).

Under this provision, when using a flagger, the employer is required to ensure that the flagger wears warning garments where the MUTCD indicates that they are required, and that those garments meet the criteria (for factors such as degree of visibility) set in the MUTCD.1 Therefore, if the police officer is employed by a private entity while performing the duties of a flagger as defined in §1926.201(a), warning garments, as indicated in Part VI of the Millennium Edition of the Manual on Uniform Traffic Control Devices, must be worn.

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.

Sincerely,



Russell B. Swanson, Director
Directorate of Construction

 

 

1 This topic is also addressed in our May 11, 2004 letter to Mr. Bradley Sant, which similarly addresses the incorporation of MUTCD requirements for flaggers and the warning garments worn by flaggers. [ back to text ]