OSHA Imposes Reflective Vests on Construction Industry Without Rulemaking

OSHA's reliance on FHWA regulations also constitutes an end run around the OSH Act's rulemaking provisions. Those provisions afford all employers - not just those building federally financed highways - the opportunity to comment on proposed safety requirements, and they impose substantive limitations specific to the OSH Act. OSHA's conduct here undermines OSH Act rulemaking, attempts to make enforceable regulations that did not meet its strictures, and perpetuates the lack of fair notice that the commission found in Ruhlin.

As to whether a hazard is recognized under the General Duty Clause, it is difficult to see how OSHA can cite an inapplicable FHWA regulation, or FHWA's recognition of a hazard, to show that a hazard is “recognized” under the OSH Act's General Duty Clause.

To understand why, it is necessary to first ask: Recognized by whom? When the General Duty Clause says that employers must protect employees against “recognized” hazards, who must do the recognizing? Case law generally has held that a hazard must be recognized by either the employer or its industry. These holdings reflected Congress's intent that the General Duty Clause be applied only when employers have not merely had fair notice that a condition poses a hazard, but such strong notice that that they or their competitors actually have recognized the condition as posing a hazard. That is why Congress permitted OSHA for its first 2 years to adopt without rulemaking a so-called “national consensus standard” if it was “adopted … by a nationally recognized standards-producing organization under procedures [such that] persons interested and affected by… the standard have reached substantial agreement on its adoption.” Regulations of a government agency such as the FHWA evidence no such recognition, for they show only that the agency recognizes a hazard, not that an employer or its industry does.

The idea that a hazard is “recognized” because it is “obvious” also is highly questionable. Nothing in the text or legislative history of the General Duty Clause indicates that the congressional purpose in limiting the clause to “recognized” hazards is met by an OSHA inspector's subjective testimony that to him or her, the hazard is “obvious.” If the traffic hazard is obvious and reflective vests are necessary for non-flaggers -

• Why does OSHA's own standard distinguish between flaggers and non-flaggers with respect to reflective vests?

• Why does the version of the MUTCD referenced by OSHA's own standards only recommend reflective vests?

• Why doesn't OSHA adopt a reflective vest standard in a rulemaking? Why rely on inapplicable FHWCA regulations? If the hazard truly was obvious and widespread, this would not be difficult. In trenching and excavation work, OSHA already has adopted a standard (29 CFR § 1926.651(d)) requiring reflective vests for “[e]mployees exposed to public vehicular traffic.”

It is unfortunate that the OSHA has attempted this end run around the OSH Act's rulemaking process, avoiding the protections of the General Duty Clause and the fair notice doctrine. Employers facing reflective vest citations based on OSHA's latest interpretations might consider contesting them on this basis.

Arthur G. Sapper is a partner in the Washington, D.C., office of McDermott Will & Emery LLP. He is a member of the firm's OSHA Group, where his practice focuses on all areas of OSHA law, including inspections, litigation, rulemaking, counseling and lobbying.