June 7, 2002

Mr. Nicholas Mertz
9054 Hyland Creek Road
Bloomington, MN 55437

Re: §1926.51(c)(4); sanitation, mobile crews

Dear Mr. Mertz:

This is in response to your letter of October 1, 2001, to the Occupational Safety and Health Administration (OSHA) in which you ask for an interpretation of the construction sanitation standard, specifically the provision pertaining to mobile crews. We apologize for the long delay in providing this response.

Question: The requirements of §1926.51(c) for sanitation facilities states that they do not apply to mobile crews "having transportation readily available to nearby toilet facilities." What does "nearby" mean?

Answer:
Construction sanitation standard; mobile crews

OSHA's construction sanitation standard is codified at 29 CFR 1926.51. Paragraph (c) of §1926.51, "Toilets at construction jobsites," states:

However, as you are aware, §1926.51(c)(4) makes the provisions of paragraph (c) inapplicable to "mobile crews having transportation readily available to nearby toilet facilities."

When determining whether paragraph (c)(4) applies to a work crew, employers must evaluate the nature of the site and job functions of the crew. Workers who continually or frequently move from jobsite to jobsite on a daily or hourly basis would be considered a "mobile crew." Workers who report to a conventional construction project, where they work for more extended periods of time (days, weeks, or longer), would not be considered a "mobile crew" for purposes of the sanitation standard.

Definition of "nearby"

As noted above, the requirements of (c)(4) are inapplicable when a mobile crew has transportation readily available to "nearby" toilet facilities. As explained below, for purposes of this standard, "nearby" means prompt access -- sufficiently close so that employees can use them when they need to do so.

The purpose of this standard is to ensure that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them. Individuals vary significantly in the frequency with which they need to urinate and defecate, with pregnant women, women with stress incontinence, and men with prostatic hypertrophy needing to urinate more frequently. Increased frequency of voiding may also be caused by various medications, by environmental factors such as cold, and by high fluid intake, which may be necessary for individuals working in a hot environment. Diet, medication use, and medical condition are among the factors that can affect the frequency of defecation.

Medical studies show the importance of regular urination, with women generally needing to void more frequently than men. Adverse health effects that may result from voluntary urinary retention include increased frequency of urinary tract infections (UTIs), which can lead to more serious infections and, in rare situations, renal damage (see, e.g., Nielsen, A. Waite, W., "Epidemiology of Infrequent Voiding and Associated Symptoms," Scand J Urol Nephrol Supplement 157). UTIs during pregnancy have been associated with low birthweight babies, who are at risk for additional health problems compared to normal weight infants (see, Naeye, R.L., "Causes of the Excess Rates of Perinatal Mortality and the Prematurity in Pregnancies Complicated by Maternity Urinary Tract Infections," New England Journal of Medicine 1979; 300(15); 819-823). Medical evidence also shows that health problems, including constipation, abdominal pain, diverticuli, and hemorrhoids, can result if individuals delay defecation (see National Institutes of Health (NJH) Publication No. 95-2754, July 1995).

The language and structure of the construction industry sanitation standard reflect the Agency's intent that employees be able to use toilet facilities promptly. The standard in (c)(4) requires that toilet facilities be "provided." The most basic meaning of "provide" is "make available." See Webster's II New College Dictionary("Webster"), 1995, defining "provide" as "to furnish; to make ready; to make available." Toilets that take too long to get to are not "available." Similarly, one purpose of the requirement in Table D-1 that adequate numbers of toilets be provided for the size of the workforce is timely access -- to assure that employees will not have to wait in long lines to use those facilities. The most basic meaning of "readily" as defined by Webster is "promptly; willingly; easily;" and it furthermore defines "ready" as "prepared or available for service or action."

Mobile crew employees relying on "nearby" facilities must be afforded access equivalent to that provided by the general provision for employees at fixed worksites. Read together, the two provisions make clear that mobile crews must have prompt access to nearby toilet facilities. For example, in general, toilets would be considered "nearby" if it would take less than 10 minutes to get to them.

If you need additional information, please do not hesitate to contact us by fax at: U.S. Department of Labor, OSHA, [Directorate of Construction, Office of Construction Standards and Guidance], fax # 202-693-1689. You can also contact us by mail at the above office, Room N3468, 200 Constitution Avenue, N.W., Washington, D.C. 20210, although there will be a delay in our receiving correspondence by mail.

Sincerely,



Russell B. Swanson, Director
Directorate of Construction