Monday, April 2, 2012

Is it an OSHA Violation? That Depends . . . .

Have you ever wondered out loud why some OSHA standards for general industry (1910) and construction (1926) that address the same exact topic differ sometimes? Or have you even noticed?

To help me demonstrate to you why some of these differences can be so perplexing, let me first refresh your memory on a couple of the OSHA standards for two common items; fixed ladders and air contaminants (specifically, Stoddard solvent). Here are the OSHA standards that apply to each in the two different work environments:

In the OSHA general industry standards, a cage or well is required on fixed ladders when the total climb exceeds 20 feet [1910.27(d)(1)(ii)]. And in the general industry standards for air contaminants, OSHA sets the permissible exposure limit (PEL) for employee exposure to Stoddard solvent at 500 ppm (parts per million), based on an 8-hour TWA (time weighted average). [1910.1000]. 

In the OSHA construction standards, a cage or other ladder safety device is required for a fixed ladder when the total climb equals or exceeds 24 feet [1926.1053(a)(19)]. And in the OSHA construction standards for air contaminants, the permissible exposure limit (PEL) for Stoddard solvent is only 200 ppm, based on an 8-hour TWA. [1926.55].

Now, to understand how exasperating these differences can be when applied to the two types of workplaces (general industry and construction), consider this scenario:

A worker climbs up to a 23 foot high mezzanine using a fixed ladder that has no cage or other ladder safety device installed, then starts to mix paint and Stoddard solvent together for some period of time; this results in employee exposure to the solvent at an 8-hour TWA exposure of 350 ppm.

Is the employer of this worker in violation of one or more of these regulations? Yes, one violation of an OSHA standard exists; but the one OSHA standard that is cited will differ, depending on which work environment (general industry versus construction) the employee is working.

An employer regulated by the general industry standards will receive one citation for the lack of a cage on the fixed ladder, but will not be cited for exposure to the Stoddard solvent because the worker’s exposure is within acceptable levels. Yet in a workplace regulated by the OSHA construction standards, one citation would be issued to the employer because their worker is over-exposed to the Stoddard solvent, but there is no citation related to the fixed ladder because it is not required to have a cage or other ladder safety device.

There’s gotta be some way I can turn this scenario into a sure-fire bet at a bar; I should be able to win a beer every time!

Other than a few slight differences such as those described here, the OSHA standards for fixed ladders and for air contaminants in 1910 and 1926 are essentially the same. So how do these differences come to be? Often times when OSHA creates a new standard, or updates an old one, they base their requirements on those contained in existing voluntary “consensus” standards (such as those published by groups like ANSI or ACGIH) that are in effect at that time. However, the consensus standards are regularly updated (sometimes as often as annually). So when OSHA creates (or updates) a general industry standard based on a particular consensus standard one year, and then they create (or update) a similar construction standard based on the same consensus standard at a later time (or visa-versa), the information in that consensus standard may have been changed. And that helps create some of the variations that appear in the two types of OSHA standards.

As a result of these variances between standards, many consultants, trainers, and employers who are well schooled in one version of the OSHA regulations (general industry or construction) unknowingly apply them incorrectly when they cross over to the other industry. So make sure you are fully aware of these (and other) subtle differences within these otherwise-similar OSHA standards as you apply them to the different work environments.

Do you know of any other examples of similar OSHA standards for construction and general industry with seemingly senseless differences such as the ones described in this blog post? If so, or if you just want to make a comment about this blog post, please share your thoughts with other readers in the “comments” section below. And please, pass a link to this blog post along to others in your network who you think may benefit from this information.

15 comments:

  1. One thing you need to keep in mind. Some activities conducted by personnel in General Industry can be enforced under construction standards. The dividing line between construction and maintenance can be pretty doggone confusing. If in doubt, go with the toughest standard. Besides, in the case of the example used, a cage around a ladder isn't a fall protection device. It just directs the body so it's easier to find. That is, if the body doesn't get all tangled up in the cage and complicate the body retrieval.

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  2. Fall Protection trigger heights:
    General Industry 4 feet
    Construction 6 feet
    Steel erection 15 feet
    Controlled decking zones 30 feet
    Connectors (first man up) 30 feet

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  3. Oh yah and I forgot scaffolds which is 10 feet

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  4. Thanks for the clarification. It might be interesting to note that there are also specific regulations for one industry that are not discussed in the other, such as demolition and confined space. These do crossover into the other field also.

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  5. With aproximately 80% of falls over 8ft. resulting in a head injury or death Oregon, has chosen not to require fall protection below 10ft.in construction. In Cali it is 5ft. This creates even more confusion because states that have controll of thier Osha programs can differ greatly from state to state. My opion is that OSHA should go back to the federal government so that we all are on the same page when it come to OH&S. OROSHA has been told by the feds to strengthen its program for years and all Oregon does is drag its feet.

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  6. I remember a long time ago there was a disparity between 10 and 26 concerning regulating compressed air for cleaning. 1910 said <30psi and 1926 said it couldn't be greater than 30psi. It resulted in some of the air guns reading 29psi and others reading 30psi. It has since been alligned to both read <30psi.

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  7. An interpretive letter dated 11/18/03 explains OSHA's position on the differences between "Maintenance" and "Construction" activities. The letter is under 1910.12 (b). The footnotes in this letter are helpful

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    1. Do you have a link? I have been trying to find that letter of interpretation every where.

      Thanks.

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    2. Try this one:

      http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24789

      Thanks, Curtis

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  8. Just like on a Material Safety Data Sheet it often depends on which group is the most powerful in the manufacturer's company: research, sales and marketing, or the law department.

    My point: definately follow the manufacturer's recommendations as a minimum but ALSO apply good engineering judgement to apply stricter standards where appropriate to protect employees.

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  9. I have successfully used an employer's conformity to the specifications in general industry standards to show a reasonable level of care when fighting the more subjective construction standards. I agree with the commenter who said to generally comply with the tougher standard when there's a question whether GI or construction will apply. And remember, if they cite under the wrong sector's standard and have not amended the citation before trial (or charged in the alternative), a successful "jurisdictional" argument gets the citation vacated. I did this recently for a client in an electrical fatality case where they were cited under construction but the OSHA policy indicated that work on a secondary fault as they were doing was maintenance and under GI.

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  10. Gas cylinders on welding carts is another difference

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  11. Yes, fall protection on walking/working surfaces are different. Construction industry is 6 ft., while general industry is 4 ft.

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  12. It is important to know which standards apply. When dealing with asbestos, for example, the activity determines the standard. Folks that are normally classified as General Industry (1910) must comply with the Construction standards (1926) when performing activities defined as "construction" in 1926.1101 (Asbestos).

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  13. And how about the difference in 'protection from falling objects' requirements for toeboards. In GI it is 4" [1910.23(e)(4)] in Construction it is 3.5" [1926.503(j)(3)].

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