To be clear, I can’t entirely agree with Alaska OSHRC’s decision to dismiss the OSHA citation. But I am also tired of the blanketing workplaces with hi-vis gear that is NO LONGER “highly visible” or “reflective.” These vests and other HI-VIS gear are used WAY beyond their intended life cycle, making safety a highly visible mockery. If we feel this PPE is necessary, it MUST be appropriately managed to maintain its effectiveness. See my article from earlier this year:
When are High-Vis garments no longer considered High-Vis?
The AK OSHRC Decision
This matter arises from an industrial accident that occurred on October 29, 2009, when an employee was severely injured when struck by a tanker truck driven by another worker. The injured employee had been assisting the driver in hitching a trailer up to the tanker and was pinned between the rear wheels of the tanker and the trailer.
AK-OSHA issued a single, one-part citation alleging a violation of the occupational safety and health standard set forth at 29 C.F.R. § 1910.132(d)(1)(i). That standard requires employers to perform a workplace hazard assessment to determine whether hazards exist that necessitate the use of personal protective equipment [PPE] and, if so, to select and have employees use the appropriate PPE.
The complaint asserts that the employer’s workplace hazard assessment failed to identify a need for employees to wear reflective clothing or a safety vest while working in darkness or where vehicles are operating in close proximity.
The employer filed a notice of contest and an answer to the complaint, followed by a motion to dismiss the complaint or, in the alternative, for summary adjudication. The employer’s motion asserts that dismissal is proper because reflective clothing and vests do not constitute PPE within the meaning of 29 C.F.R. § 1910.132(d).
It asserts that summary adjudication is appropriate because undisputed evidence establishes that the employer conducted a hazard assessment and required use of reflective clothing.
Lastly, the employer contends that the violation, if there was one, should be characterized as de minimus.
AK OSHA contends that dismissal of the citation is not warranted because a safety vest and reflective clothing are types of PPE, and that summary adjudication should be denied because the appropriate personnel did not perform a hazard assessment. AK OSHA adds that the violation is serious.
After considering the evidence and the parties’ arguments, the Occupational Safety and Health Review Board grants the employer’s motion.
Facts
On October 27, 2009, an employee was working at C Pad Chemical, Prudhoe Bay, Alaska. The employee was the Lead Operator for the shift beginning at 6:00 p.m. that evening. As part of his duties, he was responsible for completing a Task Hazard Assessment for his tasks for his shift, as were all of the other employees working on C Pad. He completed his Task Hazard Assessment, signed it, and gave it to his foreman to review.
The Task Hazard Assessment identified two sequential tasks: driving and fluid transfer. It identified several potential hazards for the former task, among them “other drivers.”
Among the procedures identified to protect against that hazard was “eyes on task
other drivers.” The Task Hazard Assessment form lists a variety of PPEs that might be required. One “other” PPE identified on the form of the employee was a “reflective vest.”
At around 1130 p.m., a chemical tanker trailer truck arrived at C Pad. The driver’s task was to drop off his fully loaded tanker and pick up an empty one. The driver, 18, entered the office and, after filling out the necessary paperwork, went outside with the employee.
Work lights lighted the area where the tanker transfer was to occur. The driver parked his full tanker and disengaged it next to the empty tanker. He then pulled ahead and began backing up to the empty tanker. As the driver was backing up, he could see through worker in his mirror. The worker was wearing an Arctic parka with green fluorescent reflective tape on the arms, chest, and back. The worker was standing off to the right (passenger) side of the empty tanker.
The driver’s first attempt to hook up the empty tanker was unsuccessful, so he pulled ahead again, climbed out of the cab, and came back to talk to the worker. After speaking with him, the driver returned to the cab and again began to back up to the empty tanker. He looked for the worker in his mirror but did not see him. The driver backed up, looking out of his left-side mirror. Once again, the cab and tanker failed to couple. The driver got out of the cab again, and found that the worker had been caught between the right rear fender of the cab and the frame of the tanker. The worker was severely injured.
Discussion
An employer in Alaska must to everything necessary to protect the safety of employees, including complying with all occupational safety and health standards and regulations adopted by the Division.
The Division has adopted 29 C.F.R. §1910.132(d)(1)(i) by regulation. That standard requires employers to perform a workplace hazard assessment to determine whether hazards exist that necessitate the use of personal protective equipment (PPE) and, if they are present (or are likely to be present), to select and have the affected employees wear the type of PPE that will protect them from the hazards identified.
The complaint, in this case, rests on a citation issued following an investigation of the accident described above. The citation asserts that the employer violated 29 C.F.R. § 1910.132(d)(i) and, as an example, states that the employer had “placed the employee at risk of injury due to the employer’s failure to identify [t]he appropriate PPE for (use] on the hazard assessment.”
The employer filed a motion to dismiss or in the alternative for summary adjudication, asserting that it is not liable for the violation of the referenced standard because (1) the employer conducted a hazard assessment and (2)(a) reflective clothing is not PPE within the meaning of 29 C.F.R. §1910.132(d)(1)(i), and in any event (b) the employer required the use of reflective clothing.
A. General Legal Standards
1. Motion to Dismiss
The employer argues that the citation should be dismissed because reflective clothing is not PPE.
A citation may be dismissed when the conduct alleged, even if it occurred, would not constitute a violation of the referenced health and safety standard. Whether conduct falls within the scope of a health and safety standard is a question of law. The Board has in the past construed a standard broadly to achieve the intended result of assuring worker safety. When the language of a standard is not explicit, the Board may consider extrinsic evidence of its meaning, including
the legislative history and preamble and, where appropriate, industry practice.
2. Summary Adjudication
In the alternative to dismissal, the employer argues that it is entitled to summary adjudication in its favor because the undisputed evidence establishes that the employer conduct ed a hazard assessment, and that, assuming reflective clothing is PPE, the employer required the use of reflective clothing. In order to be entitled to judgment on a motion for summary adjudication, the moving party must show that taking all reasonable inferences from the evidence in favor of the other party, on the undisputed material facts the moving party is entitled to judgment as a matter of law.
B. Reflective Clothing Does Not Constitute PPE
The employer argues that reflective clothing is not PPE within the meaning of 29 C.F.R. § 1910.132(d)(1), because the requirement that employees wear PPE does not apply to hazards such as being crushed by moving vehicles. the employer argues that the reference to PPE in 29 C.F.R. § 1910.132(d)(1) is limited, pursuant to 29 C.F.R. § 191 0. l 32(a), to hazards that pose a threat of harm through “absorption, inhalation, or physical contact.” 39 PPE, the employer asserts, is protective equipment in the nature of a barrier or shield to prevent the hazards posed by absorption or inhalation of, or physical contact with, substances, objects, gas, or radiation.
In particular, the employer relies on a decision issued by a federal administrative law judge that expressly rejected characterizing reflective clothing as PPE within the meaning of29 C.F.R. § 1910.132.
29 C.F.R. §1910.132(a) states:
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 whenever it is necessary by reason of hazards of process 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 Division contends that a reflective vest is PPE because “it is intended to protect employees from accidents during times of low visibility.” It points out that 29 C.F.R. §1910.132(a) calls for the use of “[p] reflective equipment, including personal protective equipment…, protective clothing, respiratory devices, and protective shields and barriers” and that it is not limited to the types of protective equipment expressly listed.
The employer argues that while 29 C.F.R. § 1910.132(a) includes other forms of protective equipment than those specifically listed, it does not include types of protective equipment that are not within the same general class as the listed items: that is, it does not include items that protect an employee by means other than by providing a shield or barrier (since all of the listed items share that characteristic).
The employer’s position reflects a common rule of statutory interpretation which holds that when a statute includes a general term, followed by specific examples, it should be construed as limited to things sharing the characteristics of those enumerated. But it does not take reference to the sometimes-arcane rules of statutory construction to discern that the employer is substantially correct: it takes only close attention to the wording of 29 C.F.R. § 1910.132(a).
Reduced to essentials, that standard says: “Protective equipment. .. shall be provided [etc.] whenever it is necessary by reason of [1] hazards of [a] process or [b] environment, [2] chemical hazards, [3] radiological hazards, or [4] mechanical irritants encountered in a manner capable of causing injury … through absorption, inhalation, or physical contact.” The hazard at issue in this case is the risk of being struck by a moving vehicle in the workplace. That is not a chemical hazard, a radiological hazard, or a mechanical irritant. Thus, the requirement for use of PPE depends on whether the risk of being struck by a moving vehicle in the workplace is a hazard of “process” or “environment.”
To say that the hazard posed by being struck by a moving vehicle in the workplace is a hazard of”environment” within the meaning of29 C.F.R. §1910.132(a) would effectively render the reference to that particular type of hazard meaningless: it would mean that a hazard of “environment” is any hazard in that exists within the workplace environment, that is to say, any hazard in the workplace “environment” in the sense of the workplace location or vicinity. Such a meaning would make the requirement for PPE so extensive as to escape any reasonable limit. A hazard of “environment,” we believe, is something different than a hazard of the workplace generally. We see no basis for deeming the risk of being struck by a moving vehicle on a job site to be an environmental hazard within the meaning of 29 C.F.R. 1910.132(a) and (d). We do not think that is the meaning being intended.
A closer question is presented when we consider whether the risk of being struck by a moving vehicle in the workplace is a hazard of “process.” The term “process” connotes, we believe, a specific industrial or mechanical process, not the “process” by which a competent employee performs his or her duties. Viewed in that light, a hazard of process is a hazard associated with a specific industrial or mechanical process. This reading, we think, reflects and is consistent with the types of hazards identified in the specific standards.
Reading the term “hazard of process or environment ” as excluding the hazard of being struck by a moving vehicle in the workplace would yield an understanding of “personal protective equipment ” that is consistent with the specific types of equipment that the general term “protective equipment” is stated to include: equipment which, as the employer points out, shares the characteristic that it provides protection in the form of a barrier or shield, rather than in the
form of a warning device.
Our understanding of the intended meaning of the term “personal protective equipment” in 29 C.F.R. §1910.132(a) reflects the manner in which the standard has been interpreted by the federal Occupational Safety Health Review Commission. In a 2006 decision, the commission addressed a citation issued against the Postal Service after a letter carrier’s pushcart was struck by a vehicle. A citation for violation of 29 C.F.R. §1910.132 was dismissed by an administrative law judge on the ground that the standard did not require the wearing of reflective clothing.
On appeal, the commission concluded that reading the standard as applicable to reflective clothing would be unreasonable. The commission noted that there are specific regulations that require the use of high visibility or other warning garments in appropriate circumstances. In addition, the commission observed that although the federal Occupational Safety and Health Administration had, in five cases between 1992 and 2004 (none of which resulted in a commission decision on point), cited employers under 29 C.F.R. § 1910.132(a) for failure to provide reflective vests, a 2004 letter of interpretation issued by the Secretary of Labor had “effectively removed[d] the primary basis of the Secretary’s §1910 .132(a) enforcement policy.”
In light of the ambiguity in the standard, the absence of reference to protection by means of warning, and the federal precedent directly on point, we conclude that the citation, insofar as it is based on the failure to require the use of a reflective vest, must be dismissed.
C. Conduct of Hazard Assessment
The conclusion that reflective clothing is not PPE means that the failure to require the wearing of reflective clothing would not be a violation of 29 C.F.R. 1910 .132( d). However, reflective clothing is not PPE, which does not mean that there was no requirement to conduct a hazard assessment. In support of its motion, the employer submitted a written hazard assessment form, purporting to bear the signature of the employee signature, from the date and location in question, along with the employee’s affidavit and that of his supervisor, both stating that on the date in question, the employee performed a hazard assessment. This evidence, if not disputed by admissible evidence, would warrant summary adjudication in the employer’s favor to the extent that the citation alleges a failure to conduct a hazard assessment.
The citation does not assert that the employer failed to conduct a hazard assessment. Rather, it asserts that the employer “fail[ed] to identify [t)he appropriate PE for [use] on the hazard assessment.” Nonetheless, the Division opposed summary adjudication with respect to the conduct of a hazard assessment, based on the argument that the hazard assessment was performed by an employee, and the standard calls for the hazard assessment to be conducted by the employer, not by an employee.
This argument is without merit. There is no requirement that employers must retain independent consultants or contractors to perform hazard assessments, and it is apparent that absent the use of such third parties, an employer can only act through its employees. An employer may conduct a hazard assessment by using its own employees.
It may be that rather than asserting that the employer may not conduct an assessment with its own employees, what the Division meant to say is that the hazard assessment must be conducted by an employee who is a supervisor, or who has been specially trained for that purpose, rather than by an employee who will be carrying out his duties in the area of the workplace that has been assessed. But nothing in the text of the standard supports that argument, and the Division presented no evidence that the employee was unqualified to perform the assessment himself. The standard does not prescribe a particular manner or procedure for
performing a hazard assessment, and in this particular case, the hazard assessment form that the employee filled out on its face identifies a variety of potential hazards. Taking all reasonable inferences in favor of the Division, it has not shown that the employer failed to comply with the directive that it perform a hazard assessment.
IV. Conclusion
A reflective vest or clothing is not “personal protective equipment” within the meaning of 29 C.F.R. § 1910.132.
The undisputed evidence establishes that the employer conducted a hazard assessment. Accordingly, the citation is Dismissed.
Source: https://labor.alaska.gov/oshboard/do/10-2250_ASRC_Energy_Services.pdf