OSHA, Traffic Safety and the MUTCD
References to the Manual on Uniform Traffic Control Devices (MUTCD) have been in the Occupational Safety and Health Administration (OSHA) regulations since at least 2001 and possibly earlier.
In Subpart G of the 1926 Construction Regulations, three paragraphs for Signs, Flaggers and Barricades tie OSHA directly to the MUTCD for construction activities. For situations that don’t directly apply to these three areas, OSHA can fall back to the General Duty Clause 5A1, which basically says that an employer is responsible to keep its employees safe at all times (see the sidebar on OSHA regulations). Essentially, this means that even if there is not a single reference in all of the several thousands of pages of OSHA regulations that addresses the perceived hazard, you as an employer are expected to know better.
Keep in mind that the activities of surveying crews typically swing between the general industry regulations and the construction regulations (see the sidebar on general duty vs. construction). In general industry applications, all citations have to be issued under the General Duty Clause. When a Compliance Safety and Health Officer (COSHO) attempts to issue a General Duty citation, the burden of proof is tremendous. As a result, General Duty Clause violations will likely involve higher fines. However, the increased burden of proof means it will take longer for COSHOs to develop the case against an employer, making it less likely that they will issue citations for small infractions.
In October 2012, OSHA issued a new compliance directive, CPL 02-01-154, which is now the basis for COSHO inspections of worksites requiring temporary traffic control to protect workers. Portions of this directive tell COSHOs how to protect themselves and how to approach the inspection site. The directive also establishes the training required for COSHOs to be able to issue traffic control citations.
This entire directive is the first real attempt at setting specific procedures for a traffic control inspection. As this article is being written, there are no training classes at the OSHA Training Institute (OTI) for the compliance officer who may be coming to your workplace to conduct a traffic control inspection. All federal OSHA compliance officers and most state plan state officers go to OTI for their training. Although some of the state plan states have conducted their own classes on the MUTCD, it is unclear whether these classes meet the federal guidelines.
In addition to the references to the MUTCD in the OSHA Construction Regulations, there also are some regulations that deal with flagging and excavations that are separate from the Sign Signal and Barricades sections. During a construction activity, OSHA can cite your company either under these regulations or under the General Duty Clause. If you are performing a general industry activity, any citations would fall under the General Duty Clause. Where and how you get cited is important when negotiating any settlements after citations are issued—especially now that all serious citations are a potential for repeat status for an entire five-year period after your case is closed. Do the same thing wrong twice in five years, and the potential exists for a devastating loss of hard-earned funds; violations that start at $7,000 per item can go as high as $70,000 under the repeat status.
Despite the changes, MUTCD continues to be the standard for traffic control activities in both general industry and construction applications. In the past, the MUTCD has been referenced just about every time a traffic control issue is cited under the General Duty Clause. For this reason, all surveying companies should conduct training on traffic control based on the MUTCD. This training should be thorough enough for your employees to understand how to set up and use devices and equipment under your Temporary Traffic Control Plan (TCP). You should regularly inspect your traffic control sites to make certain employees are following their training. If they aren’t, then additional training will be justified. You should also hold periodic toolbox safety talks about traffic control.
The most ironic part of the entire traffic control issue with OSHA is that compliance officers have been citing these items for years and are just now getting around to giving instructions to their COSHOs on how to do the inspections. It gets even scarier considering that most CSHOs in the U.S. have not had detailed training in the MUTCD and how traffic control should be established. Apparently, however, they can cite you for not knowing what they don’t know.
Q: I have been surveying since I graduated high school in 1951. In that 62 years, I’ve witnessed, heard of, and been involved in some horrific scenes, all caused by ignorance of the importance of safe working conditions. How can I convince all of my employees to use my cones, signs, hard hats, vests, flags. etc?
—Gerald T. O’Buckley, PLS, Flushing, N.Y.
A: This question has been answered in many different ways by people in the safety industry over the years. Some say incentive plans are the way to go. Others say a “safety culture” has to be developed. Still others may use facts and figures to track injuries and near misses to see what areas need to be enhanced.
In my view, safety starts with hiring. Let prospective employees know during the interview that you place a high priority on safety and will accept nothing less than compliance with all safety rules from your employees. Upon hiring, you must give them the tools they need to do their job, including all safety equipment and training—providing the proper training up front is key. After that, safety must be emphasized on a regular basis. At a minimum of once per week, every employee should participate in a safety talk. Additionally, 20(b)2 of the Construction Regulations says that “frequent and regular inspections” must be made by a “competent person.” These inspections will indicate whether employees are complying with your firm’s safety rules and whether any hazards are present that may have not been anticipated. Having safety rules in the form of a written safety program is also imperative.
Set the bar, provide basic and ongoing training, conduct inspections, and then, the final portion—discipline. No one would put up with employees who are consistently late and do poor work. Likewise, you shouldn’t retain employees who repeatedly disregard your firm’s safety rules. I have seen what happens when a company terminates a worker for noncompliance with safety regulations; the attitude of the entire company changes. I am not advocating that you fire someone to get to an end result, but do offer discipline when it is needed. The results may be remarkable.
Q: I read the recent article in POB magazine in which you talked about OSHA compliance (“Reducing Risk,” February 2013). You say that “surveying and mapping professionals should seek to stay informed of changes to compliance guidelines, obtain adequate training, use the appropriate safety gear and document their safety strategy.” Where can a small firm like ours find the answers to safety questions quickly? Where can I find the OSHA Guidelines, and where can I find postings of changes to them? You alluded to the fact that small firms like ours don’t have the time or resources to wade through hours of online searches and phone calls. That’s absolutely the case. Can you help?
—Tracy Hughes, Kennebunkport, Maine
A: Let’s start with the easy items. At www.osha.gov, you will find a “law and regulations” link on the left side, toward the bottom. This link gives you access to all of the federal OSHA regulations in a format that is searchable and easy to navigate. If you are working in a State Plan State (one that has its own workplace safety program), go back to the home page and select the state from the box on the left. This will take you to that state’s website; from there you should be able to find any regulations that may be different from those at the federal level.
To stay abreast of changes and new emphasis programs, check the latest news section of the OSHA website. You can search back for years in this area and see all types of things that are happening at OSHA, including major fines and citations along with publications of new regulations or changes to regulations in the Federal Register. You can also subscribe to a QuickTakes Newsletter that is sent to your email address twice per month and outlines major happenings at OSHA.
I also strongly suggest that you attend safety presentations when they are available from your local surveying association. These may be part of a larger convention or standalone seminars that focus on the topic of safety. I have put together safety presentations for several topics directly related to the surveying profession and love to pass on this knowledge through seminars. I have also put together a 10-hour and 30-hour OSHA class directed toward the surveying profession. Contact your state society or local chapter to find out if I will be offering these classes in your region.
1926.200(g)(1) Traffic signs.
Construction areas shall be posted with legible traffic signs at points of hazard.
All traffic control signs or devices used for protection of construction workers shall conform to Part VI of the Manual of Uniform Traffic Control Devices (MUTCD), 1988 Edition, Revision 3, September 3, 1993, FHWA-SA-94-027 or Part VI of the Manual on Uniform Traffic Control Devices, Millennium Edition, December 2000, FHWA, which are incorporated by reference.
Signaling by flaggers and the use of flaggers, including warning garments worn by flaggers, shall conform to Part VI of the Manual on Uniform Traffic Control Devices, (1988 Edition, Revision 3 or the Millennium Edition), which are incorporated by reference in §1926.200(g)(2).
General Duty 5A
1) Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
2) Each employer shall comply with occupational safety and health standards promulgated under this act.
1926.20(b) Accident prevention responsibilities.
(1) It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part.
(2) Such programs shall provide for frequent and regular inspections of the job sites, materials and equipment to be made by competent persons designated by the employers.
General Industry or Construction?
Automobile assembly plants, restaurants, accountant’s offices, retail stores and any activities other than construction, agriculture and shipbuilding are covered under the OSHA General Industry Regulations. Construction generally means that something is being changed or originally constructed. Some of the tasks that may seem construction-related could actually be maintenance operations, which fall under general industry. A simple explanation is to imagine that a storm blows shingles off of a roof. Replacing five shingles would clearly be a maintenance activity, while replacing shingles on half the roof would be considered a construction activity. The area between replacing a few shingles and replacing half a roof is fuzzy.
A surveying crew conducting a mortgage survey for a real estate professional is almost always considered a general industry type of activity. The same crew later in the day conducting construction staking on an active construction site would be covered by the construction regulations. P
re-staking for a construction project when no construction activity is underway would most likely be a general industry activity; however, if any construction permits have already been issued and a COSHO comes on site to do a planned inspection, it may be considered a construction activity.
A lot of these decisions are simply matter of individual interpretation. In an informal or contest hearing, this can be a good thing because it provides a substantial amount of room to object to the citation in question.