May 24, 2004

The Honorable Russell D. Feingold
United States Senator
1600 Aspen Commons
Room 100
Middleton, WI 53562

Dear Senator Feingold:

Thank you for your July 23, 2003 letter to the Occupational Safety and Health Administration's (OSHA's) Office of Congressional and Intergovernmental Affairs (OCIA) on behalf of your constituent, Mr. Peter Jensen. We apologize for the very long delay in the reply, but this is a very critical issue as you know. Mr. Jensen had several questions regarding the applicability of OSHA standards to escape and protection of employees from threats associated with terrorist action. His questions are answered below. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence.

Question 1: Does OSHA feel that its standards and regulatory authority apply to the unique characteristics, hazards, and issues involving the escape and protection of employees from the threats associated with a deliberate terrorist action?

Response 1: Terrorist events are not considered foreseeable workplace emergencies for purposes of OSHA standards requiring employers to anticipate and prepare for such emergencies. However, OSHA's role is not limited to enforcement, but includes a mandate to advise employers and employees and organizations representing employers and employees as to effective means of preventing occupational injuries and illnesses. OSHA has published emergency preparedness guidance on its public web page to assist employers and employees in the planning for all types of emergencies including terrorist-type incidents. Guidance published includes: the Emergency Planning Matrix, Emergency Response e-Tool, Anthrax Matrix, Anthrax Health and Safety Plan (HASP), and a fact sheet for high-rise building occupants. If an employer chooses to develop an emergency plan to safeguard its employees from the possibility of a terrorist event, OSHA recommends that it contact the local emergency planning committee (LEPC) and plan exercises with those involved in community response, so the employer understands the capabilities and limitations of the community response plan.

[The documents referenced above are available on the Emergency Preparedness and Response page.]

Both 1910.120 (Hazardous Waste Operation and Emergency Response "HAZWOPER") and 1910.38 (Emergency Action Plans) address employer actions in emergency situations. While following the direction of 1910.120(q) or 1910.38 would not be required specifically to prepare for a potential terrorist event in an office building, using the elements of these standards may also be of assistance to employers in developing a useful plan of action to respond to any emergency situation.

However, the release of chemicals or hazardous substances into a workplace, whether it is caused by an accidental release or by a terrorist event would, nevertheless, be considered a hazardous materials incident. Emergency responders and workers performing remediation efforts for such releases would fall under 29 CFR 1910.120.

Question 2: Would OSHA require full compliance with 1910.120 for respiratory fit testing of employees and medical certifications? To what level of detail would the employer be required to provide training to its employees under 1910.120 or other OSHA regulations?

Response 2: HAZWOPER would not apply if employees are only being evacuated from the office building. Respirator use is generally covered by OSHA's Respiratory Protection Standard 29 CFR 1910.134. An employer choosing to provide respirators for voluntary use by employees during an evacuation following a terrorist incident would have few obligations under the respiratory protection standard. Under the "voluntary use" provision of the Respiratory Protection Standard, OSHA requires the employer to provide each employee with the material in Appendix D of the standard and to establish and implement those elements of a written program that would ensure that the use of the respirator itself would not create a hazard. OSHA does not require voluntary-use respirators to be fit-tested. Also, OSHA does not require medical certification of employees whose only use of respirators would be for escape from such a terrorist incident.

Workers expected to remain in the area or to respond for the intention of stopping or controlling the release of the hazardous substance at the point of release would be considered emergency responders and are covered by 1910.120's provisions on respiratory fit testing and medical certifications.

HAZWOPER has training requirements for all classifications of emergency responders that are based on the "duties and functions to be performed by each responder" and are found at §1910.120(q)(6). Training curriculum guidelines are provided in Appendix E. You should refer to OSHA Compliance Instruction CPL 02-02-071 Technical Enforcement and Assistance Guidelines for Hazardous Waste Site and RCRA Corrective Action Clean-up Operations HAZWOPER.

In an actual emergency, OSHA will work through the Incident Command Structure, where one is in place, to protect worker safety and health. OSHA will use discretion in deciding whether to exercise its enforcement authority during emergency situations.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

John L. Henshaw
Assistant Secretary

[Correction 7/23/2004 and 8/1/2023]