Highway workers other than flaggers are at risk of being run over by construction vehicles and probably should wear high visibility reflective clothing when working in highway work zones, but OSHA cannot cite employers who do not provide and require use of such clothing, according to a ruling (2006 OSHRC No. 23) issued in November by the Occupational Safety and Health Review Commission (OSHRC).

The ruling overturned an earlier decision by Administrative Law Judge Ken S. Welsch in a case that involved the Ruhlin Company, a LIUNA signatory contractor in Ohio. The company had been cited by OSHA after a passing compliance officer observed nine employees working inside its highway work zone not wearing reflective vests. The company was fined $2,000, but exercised its rights under the OSH Act, appealing its citation first before an administrative law judge and then to the three-member OSHRC.

The Commission’s ruling establishes that reflective vests are not personal protective equipment (PPE) within the meaning of the mandatory PPE standard for construction (Section 1926.95(a)) because the vests “operate as a warning signal” rather than provide actual protection against a hazard. The section reads as follows:

Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition 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 absorption, inhalation or physical contact.

The commissioners found that, except in the case of flaggers who work outside the cones and barriers that mark and protect a work zone from protruding motorists, reflective vests do not provide the kind of shield or barrier to hazards contemplated in the standard. They then turned to OSHA’s alternative charge, that the vests are required under the general duty clause (Section 5(a)(1).

Welsch, the administrative law judge, had upheld Ruhlin’s citation and fine under 5(a)(1), relying on the Secretary of Labor’s 2004 standard interpretation in which she wrote:

[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.

In Welsch’s opinion, the citation under 5(a)(1) was further bolstered by expert testimony showing that, even though the reflective vests provided no additional protection against motorists for workers inside the work zone (as they do for flaggers outside), they nevertheless provide additional protection against struck-bys involving construction equipment inside the work zone. Thus, he concluded that the vests do serve as barriers and the Secretary was reasonable in saying that the vests are required under the general duty clause. He further said that the industry had been given fair notice of the new requirement when the standard interpretation was published in 2004.

However, on appeal, Ruhlin’s lawyers argued that the general duty clause cannot be the basis of a citation because OSHA’s own Field Inspection Reference Manual (FIRM) explicitly states, “Section 5(a)(1) shall not be used to enforce ‘should’ standards.” In essence, the company said, the Secretary’s interpretation just muddied the waters and did not provide fair notice of a change in its duty to require vests inside the work zone.

The OSHRC agreed with Ruhlin, writing:

[T]he MUTCD states that “workers close to the motor vehicle traveled (sic) way should wear bright, highly-visible clothing.” (Emphasis added.) Because this provision uses optional and not mandatory language, Ruhlin could have reasonably concluded that its employees were not in “the type of situation” where high-visibility warning garments were needed and, therefore, it was not required by section 5(a)(1) to use such garments.

Thus, the OSHRC vacated Ruhlin’s citation and rescinded its fine.

The Commission went further, however, and chastised the Secretary of Labor for “her attempt to impose a warning clothing requirement under the guise of a standard interpretation in order to avoid the statutory requirements for rulemaking, as set forth in the OSH Act.” Quoting from a 2004 D.C. Circuit Court of Appeals decision, the OSHRC acknowledged that OSHA can discard precedents or practices (in this case, the omission of warning vests as PPE in the construction standard), but “before doing so it must supply a ‘reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.’”

Since the OSHRC found that the Secretary’s interpretation failed to clarify “the type of situation” requiring reflective vests, it also found that it did not meet the Court’s “reasoned analysis” test and, thus, violated the rulemaking provisions of the OSH Act. It now appears that the use of reflective vests in work zones cannot be required by OSHA unless and until it conducts a full PPE standard review that adopts the reflective vest requirement. It is unclear how OSHA will respond to the ruling.

[Steve Clark]