Confusion Over OSHA Enforcement of Reflective Vests for the Construction Industry

Recently, there has been much confusion over the words "shall" ands "should" when interpreting OSHA standards and citations for employees working on road construction sites.  The Occupational Safety and Health Act of 1970 (OSHA) imposes two basic duties on employers:

1. To obey OSHA's standards.

2.  If no specific standard applies, employers are to obey the General Duty clause which requires employers to protect employees against serious "recognized" hazards.  Here is a link to the OSHA General Duty clause (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT&p_id=3359) 

Generally, the OSHA standard (29 C.F.R s 1926.201(a)) for flaggers on construction sites incorporates the provisions of "warning garments" from the 2000 edition of the Manual on Uniform Traffic Control Devices (aka 2000 MUTCD) of the Federal Highway Administration (aka FHWA.)  This standards requires that flaggers shall wear high visibility clothing.  As for non-flaggers, the MUTCD states that employees working close to motor vehicle traffic should wear bright, highly visible clothing. OSHA defines "should" as meaning only "recommended." 

In August 2009, OSHA issued a new interpretation on this topic that states, "failing to require construction workers to wear reflective vests in highway/road construction work zones would violate the General Duty Clause because such workers are "exposed to the danger of being struck by the vehicles operating near them.""  This interpretation leads one to believe that OSHA could impose fines if non-flagging employees are not wearing reflective vests/clothing. 

Historically, employers have concluded that the word "should" within OSHA standards and those referenced by OSHA are not enforceable with fines where the word "shall" was enforceable. 

What are your thoughts on this topic?  Should reflective vests be mandatory for all employee working on roadway construction sites? Are there any concerns about how this would affect your workplace?  Let us know your thoughts. 

Here are some helpful links regarding this topic:

http://ehstoday.com/construction/news/osha-imposes-reflective-vests-7860/

http://mutcd.fhwa.dot.gov/

Comments

[Safety Vest]

Great post!, I like you review in safety gears. OSHA has a good proposal to save lives.

[ANSI Safety Vests]

This should not have been a problem in the first place. OSHA should have been more clear in stating when wearing high visibility clothing is a requirement versus when it is only recommended.