By Mark A. Lies, II, James L. Curtis, and Craig B. Simonsen
Last week the Occupational Safety and Health Administration announced and issued a 161 page final rule to increase protections for construction workers in confined spaces. 80 Fed. Reg. 25366 (May 4, 2015), which is effective on August 3, 2015.
Confined spaces can be loosely defined as manholes, crawl spaces, tanks, and other places that are not intended for continuous occupancy. Confined spaces are also, because of their calculated design for other purposes, difficult to exit in an emergency. People working in confined spaces, without taking proper precautions, can face life-threatening hazards such as toxic substances, electrocutions, explosions, and asphyxiation.
The Secretary of Labor Thomas E. Perez said of the rule that “in the construction industry, entering confined spaces is often necessary, but fatalities like these don’t have to happen.” “This new rule will significantly improve the safety of construction workers who enter confined spaces. In fact, we estimate that it will prevent about 780 serious injuries every year.” OSHA Administrator, Dr. David Michaels, said “this rule emphasizes training, continuous worksite evaluation and communication requirements to further protect workers’ safety and health.”
The OSHA final rule adds a new subpart to 29 CFR Part 1926 to provide protections to employees working in confined spaces in construction. The new subpart replaces OSHA’s one training requirement for confined space work with a “comprehensive standard that includes a permit program designed to protect employees from exposure to many hazards associated with work in confined spaces, including atmospheric and physical hazards.” According to the Agency, the final rule is similar in content and organization to the general industry confined spaces standard, but it also incorporates several provisions from the proposed rule to address construction-specific hazards, to account for advancements in technology, and to improve the “enforceability of the requirements.”
Members of the regulated community, that is property owners, construction contractors, and sub-contractors, need to timely review this expansive rule, in order to meet the compliance date of August 3, 2015 and avoid OSHA citations. There are now new obligations on the various employers who may have their employees involved with construction site confined spaces.
One important requirement added to the rules relates to the responsibilities of the host employer (the owner of the site containing the confined space), the controlling contractor (who has primary control over the construction project), and the entry employer (whose employees will enter the confined space). The regulation makes the controlling contractor, rather than the host employer, the primary point of contact for information about the permit confined spaces at the worksite. The host employer must provide information it has to the controlling contractor who in turn passes the information to the entry employer.
In addition, the controlling contractor is responsible for making sure that employers outside of the confined space do not create hazards in the confined space, and that multiple entry employers working in a confined space at the same time do not create hazards for each other’s employees.
With such a complex and immense rule, employers are encouraged now to review their construction confined space policies, procedures, and training programs to ensure compliance with the new standard.