On October 20, OSHA made public a new letter of interpretation that has a significant impact on the use of high-visibility warning garments for highway and road construction workers - hi-viz attire is now a mandatory requirement for workers in these danger zones.
Echoing an increasing concern of safety experts, acting OSHA boss Jordan Barab declared in a prepared statement: “Highway construction workers should not suffer serious or fatal injuries simply because they could not be seen. Requiring the use of reflective vests is essential to help prevent workers from being injured or killed.”
An evolving concern
How did this de facto standard come about?
In 2004, OSHA issued a letter of interpretation about the use of high-visibility apparel in highway construction. The letter emphasized that section 5(a)(1) of the Occupational Safety and Health Act - the all-encompassing General Duty Clause requiring employers to provide a safe and healthful workplace in the absence of any specific standards - requires workers in highway work zones to wear high-visibility apparel.
But the Occupational Safety and Health Review Commission ruled that OSHA's letter indicated a more limited position. High-visibility garments were to be required only where the Federal Highway Administration's Manual on Uniform Traffic Control Devices (MUTCD) mandated their use, stated the OSHR Commission.
Now OSHA has issued a new letter, in response to a query from the field, stating that all highway and road construction workers must wear high-visibility apparel - regardless of whether the MUTCD requires them.
A well-recognized hazard
What has changed since 2004?
The key is this: OSHA now considers road and construction traffic a well-recognized hazard to highway/road construction workers. The Bureau of Labor Statistics reinforced the need for using safety apparel when data from 2003 to 2007 showed there were 425 road construction work zone fatalities, according to the agency.
More statistics: During the 1995 to 2002 period, 844 workers were killed while working at a road construction site, according to NIOSH. During this same period there were 9,325 deaths in the construction industry. The 844 worker deaths in road construction represent 9 percent of all deaths in construction. More than half of these fatalities were attributable to a worker being struck by a vehicle or mobile equipment. Workplace fatalities that occur at a road construction site typically account for 1.5 percent to 2.0 percent of all workplace fatalities annually.
The specific question raised to OSHA asked if the use of high-visibility warning garments by construction workers in highway work zones is required. To quote the question word for word: “Construction employees working on highway/road construction work zones often risk being struck by traffic. Do the OSHA standards require high-visibility apparel for these construction workers?”
Here is the agency’s reply, as signed by Richard Fairfax, acting head of the Directorate of Construction:
“Road and construction traffic poses an obvious and well-recognized hazard to highway/road construction work zone employees. OSHA standards require such employees to wear high-visibility garments in two specific circumstances: when they work as flaggers and when they are exposed to public vehicular traffic in the vicinity of excavations. However, other construction workers in highway/ road construction work zones are also exposed to the danger of being struck by the vehicles operating near them. For such workers, section 5(a)(1) of the OSH Act, 29 U.S.C. §654(a)(1), also known as the General Duty Clause, requires similar protection.
“The Federal Highway Administration’s (FHWA) recent issuance of a final rule (Worker Visibility, 23 CFR Part 634) demonstrates the need for all workers who are exposed either to public traffic or to construction vehicles and equipment to wear high-visibility apparel on the job. Section 634.3 of the Worker Visibility Rule states:
‘All workers within the right-of-way of a Federal-aid highway who are exposed either to traffic (vehicles using the highway for purposes of travel) or to construction equipment within the work area shall wear high-visibility safety apparel.’
“The purpose of this requirement, as stated in section 634.1, is ‘to decrease the likelihood of worker fatalities or injuries caused by motor vehicles and construction vehicles and equipment...’ In the preamble to the Worker Visibility rule (Volume 71 of the Federal Register, page 67792), the FHWA stated:
“’High visibility is one of the most prominent needs for workers who must perform tasks near moving vehicles or equipment. The need to be seen by those who drive or operate vehicles or equipment is recognized as a critical issue for worker safety. The sooner a worker in or near the path of travel is seen, the more time the operator has to avoid an accident.’ The FHWA recognized this fact and included language in the 2000 Edition of the Manual on Uniform Traffic Control Devices (MUTCD) to address this issue.
“The FHWA’s rationale underlying the rule well illustrates that the industry recognizes that construction workers in highway/road construction work zones need protection against the hazard posed by moving traffic. The FHWA’s recent mandatory standard for workers on federal-aid highways shows that struck-by hazards in highway/road construction work zones are well-recognized by the construction industry. Furthermore, the standard indicates that a feasible means of addressing that hazard is the wearing of high-visibility apparel.
“Accordingly, high-visibility apparel is required under the (OSHA) General Duty Clause to protect employees exposed to the danger of being struck by public and construction traffic while working in highway/ road construction work zones. Typically, workers in a highway/road work zone are exposed to that hazard most of the time.”
Every motorist at some time has whizzed past a highway construction crew at speeds likely exceeding 50 miles per hour. At such speeds, driver reaction time - and workers’ reaction times - are perilously slow. In the dark of night, the danger is that much greater. Consider these tragedies:
The need to be seen
The hazards faced by highway construction crews will increase in the future. As the Federal Highway Administration (another excellent safety resource at www.safety.fhwa.dot.gov) explains: “As our highway infrastructure ages, many highway agencies are focusing on rebuilding existing roadways instead of building new ones. Highway improvement projects being performed on roadways that are open to traffic are increasing. At the same time, traffic continues to grow and creates more congestion. This combination of more work zones, heavier traffic, and greater reliance on night work results in increased risk for highway workers. The following methods can be used to minimize and control risks for workers: