March 2, 2005

Daniel J. Roth
411 N. Windsor Drive
Arlington Heights, Illinois 60004

Re: Emergency medical services on construction sites

Dear Mr. Roth:

We are in receipt of your correspondence dated May 26 and September 21, 2004, to the Occupational Safety and Health Administration (OSHA) regarding a number of issues related to emergency medical services on construction sites.

After considering the information in your letters and additional information you provided in telephone discussions with OSHA staff, we have paraphrased your questions as follows:

I. Automatic External Defibrillators (AEDs)

Question 1: When will the rules on AEDs applicable to construction sites be finalized?

Answer: OSHA is not currently developing any construction standards regarding AEDs.

Question 2(a): Are there any OSHA requirements that prohibit an employer from terminating or threatening to terminate a licensed and insured Emergency Medical Technician ("EMT") for bringing an AED to the job site to render assistance if necessary?

Answer: First, note that there are no OSHA construction standards that specifically require an employer to provide an AED at a construction site.

Second, Section 11(c) of the Occupational Safety and Health Act ("OSH Act") prohibits employers from discharging or otherwise discriminating against an employee "because such employee has filed any complaint ... under or related to" the OSH Act. Whether the termination or the threat to terminate an EMT-certified employee for bringing an AED to a jobsite could be an 11(c) violation would depend on the specific facts involved.

Employees who believe that they have been discriminated against in violation of the OSH Act should contact the OSHA Area or Regional office serving their location (we have included OSHA's 11(c) information pamphlet for your review). For additional information please visit the OSHA website on The Whistleblower Program at: [ http://www.whistleblowers.gov/index.html ]

Question 2(b): Does 29 CFR 1926.50 protect an EMT from being terminated by an employer based on emergency services rendered to a worker on a construction job site?

Answer: As stated in our answer to question 2(a) above, whether such a termination would violate Section 11(c) of the Act would depend on all the relevant factors involved, which you would need to discuss with OSHA's Area or Regional office for your location.

II. 29 CFR 1926.50 - Medical services and first aid.

Question 3: Does OSHA's construction standard for medical services and first aid (§1926.50) permit a union to designate specially qualified members as first-responders for emergency medicine?

Answer: In general, the OSH Act does not address labor relations issues, including whether a union has a right to designate a particular individual for a particular job.

Question 4: I am an electrician who works on construction sites where workers are exposed on a daily basis to the risks associated with high voltage. Does 1926.50 require the presence of an individual trained in first aid on construction sites where the response time to a request for medical assistance for such workers cannot be guaranteed within four minutes?

Answer: In 29 CFR Part 1926 Subpart D (Occupational Health and Environmental Controls), §1926.50 (Medical services and first aid) provides in part:

* * *
(c) In the absence of an infirmary, clinic, hospital, or physician, that is reasonably accessible in terms of time and distance to the worksite, which is available for the treatment of injured employees, a person who has a valid certificate in first-aid training from the U.S. Bureau of Mines, the American Red Cross, or equivalent training that can be verified by documentary evidence, shall be available at the worksite to render first aid. [Emphasis added.]
* * *

[For OSHA's current policy on "reasonably accessible" and "near proximity," please see the 01/16/2007 Letter to Mr. Brogan.]

Question 5: Where 50 construction employees are spread out over 25 floors (or as many as 65 floors) in a high rise, would the presence of one individual trained in first aid satisfy the requirements of §1926.50?

Answer: Section 1926.50(b) provides:

Provisions shall be made prior to commencement of the project for prompt medical attention in case of serious injury.

In CMC Electric, the court stated that the purpose of §1926.50(b) is similar to that of §1926.50(c): ¹

... the purpose of §1926.50(b) is to avoid any unnecessary delay in the administration of medical attention to an injured employee, particularly in the case of serious injury, where even a few minutes can make a difference.

The court stated also that the provisions are "complementing and overlapping." In analyzing §1926.50(b)'s "prompt medical attention" requirement, the court noted:

... [the requirement] should be read to require the employer to take reasonable steps to insure that in case of serious injury, medical attention can be obtained as quickly as possible. In addition to the time it takes to reach medical attention, this analysis should include a review of a variety [of] factors, such as: where the job site was located and how many employees were involved....[Emphasis added.]

In situations where a certified first aider is required under §1926.50(b) or (c), whether more than one first aider is required at a work site spread over many floors of a multi-story structure will depend on factors such as those described above. Given the limited information that you provided, we are unable to conclusively comment on whether the single certified individual would suffice under the "prompt medical attention" criteria in a multi-floor scenario. Factors such as whether functioning elevators are in yet, extent of on-site communications, and reasonably expected travel time up and down stairs (where elevators are not available) would be relevant to the assessment.

Question 6(a): Must employers provide medical equipment in addition to the first aid kit required in 29 CFR 1926.50(d)?

Answer: Title 29 CFR 1926.50 states that:

(a) The employer shall insure the availability of medical personnel for advice and consultation on matters of occupational health.
(b) Provisions shall be made prior to commencement of the project for prompt medical attention in case of serious injury.
* * *
(d)(1) First aid supplies shall be easily accessible when required.
(2) The contents of the first aid kit shall be placed in a weatherproof container with individual sealed packages for each type of item, and shall be checked by the employer before being sent out on each job and at least weekly on each job to ensure that the expended items are replaced.
* * *

Employers must provide a first aid kit that contains the basic supplies necessary to address typical worksite first aid needs. "Medical equipment" that goes beyond basic first aid needs is not required to be included in the kit. ²

Question 6(b): Must a construction employer provide medical equipment in addition to the first aid kit required in 29 CFR 1926.50(d) as a consequence of an employee having emergency medical training that goes well beyond basic first aid training?

Answer: No, there is no such OSHA requirement.

III. 29 CFR 1926.103 - Respiratory protection

Question 7: Are all the requirements of §1926.103 in effect as of June 1, 2004? Who is responsible for the ongoing yearly training, and refitting of respirators?

Answer: The requirements of §1926.103 ³ have been in effect since April 8, 1998. The standard places the responsibility on the employer to ensure that the training, yearly retraining, and fit testing is conducted.

Question 8: Does §1926.103 require that all electricians be equipped with a properly fitted respirator and that all electrical contractors are required to have available on the job site sufficient cartridges to protect their workers from known hazards?

Answer: The standard does not specifically address electricians. Section 1910.134(a)(2) requires that respirators be worn "whenever it is necessary to protect the health of the employee from contaminated or oxygen deficient air."

IV. OSHAct 5(a)(1), "General Duty Clause"

Question 9: Does Section 5(a)(1) of the Occupational Safety and Health Act (the "General Duty Clause") require general foremen on a construction site to meet any general qualifications?

Answer: Section 5(a)(1) of the OSH Act states that 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.

There is no general requirement under that section (the General Duty clause) for employers to ensure that, in all cases, foremen have some specified level of qualifications. ⁴ Note, though, that some OSHA construction standards require that a "competent person" or a "qualified person" perform certain tasks. There are definitions in those standards that describe the level of qualification for each of these designations.

Note also that §1926.21(b)(2) states:

The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

Question 10: Does the General Duty Clause require employers to provide and train a designated first responder on every jobsite where five or more employees are performing construction work?

Answer: No, there is no such general requirement applicable in all cases. Note that, as discussed in questions 3-5, there are requirements regarding certified first aid personnel in §1926.50.

Therefore, an employer performing construction activities is required to provide a first aid responder on site only if there is no infirmary, clinic, hospital, or physician reasonably accessible in terms of time and distance to the worksite. The employer must ensure that the designated first aid responder has been properly trained to administer first aid (see the "valid certificate" requirement of §1926.50(c) in question 4 above).

Note also that §1926.50 is applicable irrespective of the number of employees at a particular site.

Question 11(a): Do OSHA standards require that there be a means of communication available at each worksite for summoning emergency medical assistance?

Answer: Yes. Section 1926.50(f) states:

In areas where 911 is not available, the telephone numbers of the physicians, hospitals, or ambulances shall be conspicuously posted.

The purpose of §1926.50(f) is to ensure that, where 911 is not available, the employer can rapidly contact emergency responders without wasting time trying to find the right phone number. Implicit in this requirement is that a means of communication must be available at each worksite. Having 911 available is useless if there is no way for the employer to call 911 from the worksite. Similarly, if 911 is unavailable, meeting the requirement to conspicuously post the emergency numbers at the worksite would be equally pointless.

Question 11(b): Scenario: An employer has a work rule prohibiting all employees except the employer-designated first aid responder from carrying cell phones on a worksite. An employee who is an EMT (but who is not the designated first aid responder) is also prohibited from carrying a cell phone. Would such a work rule violate any OSHA standards or the General Duty Clause?

Answer: Typically such a work rule would not violate any OSHA requirements.

V. Other Labor Laws/Immigrant Worker Training

Question 12: Where do I get information about labor laws (other than OSHA) on training requirements regarding immigrant workers?

Answer: That information can be obtained from the U.S. Department of Labor's Employment and Training Administration at 202-693-2700, or visit their website at: http://www.dol.gov/dol/compliance/comp-ina.htm .

If you need any additional information, please 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

[Corrected 03/08/2012]

¹ CMC Electric, Inc. v. Occupational Safety and Health Administration, United States Depart of Labor; International Brotherhood of Electrical Workers, Local 673, 221 F3d 861, 867 (6^th Cir. 2000) (here, the Court considered the provision's application to a site where electrical wiring was being installed). [ back to text ]

² Non-mandatory Appendix A to the standard states that "an example of the minimal contents of a generic first aid kit is described in American National Standards Institute (ANSI) Z308.1-1978." That appendix notes that such a kit "should be adequate for small work sites. When larger operations or multiple operations are being conducted at the same location, employers should determine the need for additional first aid kits ... additional types of first aid equipment and supplies and additional quantities ..." [29 CFR 1926.50, Appendix A]. [ back to text ]

³ The requirements in §1926.103 are identical to those in §1910.134. [ back to text ]

⁴ Without a specific scenario to address, we cannot comment on whether there may be particular instances where there would be a foreman/supervisor qualification requirement under the General Duty clause. [ back to text ]