June 17, 2005

Mr. Douglas A. Holman
1816 River Bend Road
Sevierville, TN 37876

Re: Requirements for being designated a competent person under Part 1926 Subpart L (Scaffolds).

Dear Mr. Holman:

You have submitted nine letters to the Occupational Safety and Health Administration (OSHA) containing a number of questions on the construction scaffold standard (29 CFR Part 1926 Subpart L).¹  We are responding in a series of separate letters in response; this is the sixth in that series.

We have paraphrased your question related to the requirements for being designated a competent person as follows:

Question: I teach a six-day program on scaffolds. In that course, I stress to the participants that their successful completion of the program will not assure their status as a "competent person" under Subpart L — Scaffolds. Conversely, an advertisement for a one-day scaffolding class that I read in a scaffolding magazine indicates that participants who pass that course will have met OSHA requirements for a competent person designation. Can such a claim be valid?

Answer: In 29 CFR Part 1926 Subpart L (Scaffolds), §1926.450(b) Definitions provides:

Competent person means one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.

In the preamble to the scaffold standard, OSHA stated that:

the criteria for a "competent person" depend on the situation in which the competent person is working.²

The preamble discusses the types of background that might be required to be a competent person for the purposes of §1926.451(f)(7), a provision that relates to the inspection of scaffold and scaffold components. That discussion concluded by noting that:

[a] competent person must have training or knowledge in these areas in order to identify and correct hazards encountered in scaffold work. [Emphasis added.]

Finally, in our letter to you dated May 21, 1999, the Agency stated:

The standard does not specify particular training requirements for competent persons. Instead, it defines a competent person in terms of capability.

Thus, successful completion of a course does not, alone, necessarily establish an individual as a "competent person" for a number of reasons. By its terms, the definition of a "competent person" compels the employer to select an employee based upon his or her capability to identify hazards. The course may not be sufficiently comprehensive with respect to the information needed to meet the knowledge requirement in the definition. Remember that the type and extent of the knowledge will vary with what is necessary to successfully perform the task required of the competent person in the standard. Also, the course may not adequately test the employee's understanding of the course material.

Finally, the definition of a competent person requires the individual to have the authority to take prompt corrective action. No course can provide that authority, since it can only be provided by the employer.

If you need 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

¹ When we originally received these questions from you in April 2003, it was unclear to us if you were requesting a response to each or if they were submitted only to call our attention to these issues in the event that OSHA were to do further rulemaking on the standard. We attempted to resolve that with you, but we were unable to obtain a response; consequently, our office closed the file. After your communications with my staff on January 13, 2005, we understand now that you are requesting a response to each question. We apologize for the misunderstanding and resulting delay in providing this response. [ back to text ]

² Volume 61 of the Federal Register, page 46059. In Secretary of Labor v. Ed Taylor Construction Co., 15 OSH Cas. (BNA) 17ll, 1992 WL 155474, the Commission focused upon the underlying variability of the term when, assessing an employer's designation of its employees as competent persons, it noted:

[t]he fact that they may have been well qualified to identify other safety hazards at that workplace, or at other workplaces, does not preclude us from [finding that the employees at issue were not "competent person[s]"]. [ back to text ]