Standard Interpretations - (Archived) Table of Contents|
| Standard Number:||1926.500|
August 31, 1989
|MEMORANDUM FOR:||MICHAEL G. CONNORS|
|THROUGH:||LEO CAREY, DIRECTOR|
Office of Field Programs
|THOMAS J. SHEPICH, DIRECTOR|
Directorate of Compliance Programs
|FROM:||GERALD P. REIDY, DIRECTOR|
Office of Construction and Maritime
|SUBJECT:||The application of 29 CFR 1926.500(b)(1)|
["Guarding of Floor Openings and Floor Holes"]
to floor openings of a limited depth.
This is in response to your request for an interpretation of 29 CFR 1926.500(b)(1) regarding the application of this standard to floor openings and floor holes of a limited depth. The specific situation described in your attached memorandum involving an area measuring 60' x 40' with a 12" floor depression in the middle of a large finished floor is not considered a floor opening or floor hole as defined by OSHA standards.
We agree with the logic and comments made by your Toledo Area Office Director that:
(1) there are no applicable Federal OSHA standards that require guardrail protection for shallow depressions, and
(2) there are no applicable Federal OSHA standards that specitically address the hazards of falls that are less than four feet.
This type of situation can only be adequately evaluated by the CSHO at the worksite to determine whether or not a safety hazard exists and whether or not it can meet the test required for issuing a citation for a section 5(a)(1) general duty clause violation. As you know, in order to establish and sustain a general duty clause violation of the Act, we must show that a hazard exists, that it is likely to cause death or serious physical harm of which the employer had actual knowledge or which is recognized as such by the employer's industry. In addition, we must show that the hazard was foreseeable and that workers were exposed to it. Finally, we must specify the corrective measures that the employer should have taken to obviate the hazard and have evidence to show that the employer will be unable to successfully assert the defense of "employee misconduct."
Therefore, we think you will agree that a uniform enforcement policy is not possible in this situation because of the many variables involved; e.g., differences in floor depressions, number of employees exposed, etc.
We have discussed this matter with the Office of Construction and Civil Engineering, Directorate of Safety Standards, and with the National Division of Occupational Safety and Health in the Solicitor's Office. They also agree with the rationale for this interpretation and concur that the only recourse in such a situation would be to use the 5(a)(1) general duty clause if it can be justified.
If you have any questions or need additional information concerning this matter, please feel free to contact Gerald P. Reidy, Director, Office of Construction and Maritime Compliance Assistance at FTS: 323-8124.
|Standard Interpretations - (Archived) Table of Contents|