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 https://www.osha.gov.

May 17, 2006

Mr. Daniel Noel
5521 Lanham Station Road
Lanham, MD 20706

Re: Whether toilets at a construction jobsite must be in a sanitary condition to meet the requirements of 29 CFR 1926.51(c).

Dear Mr. Noel:

This is in response to your letter of June 12, 2005, to Mr. John L. Henshaw of the Occupational Safety and Health Administration (OSHA) regarding unsanitary portable toilets at construction sites. In an October 20, 2005 letter addressed to you, Mr. Jonathan Snare, the then Acting Assistant Secretary of OSHA, indicated that he would have OSHA's Directorate of Construction (DOC) provide you with an interpretation letter addressing whether the failure to maintain toilets in a sanitary condition would violate 29 CFR 1926.51(c). The following is that response.

We have paraphrased your question as follows:

Question: 29 CFR 1926.51(c)(1) requires that, on construction jobsites, a specified minimum number of "toilets shall be provided for employees . . ." in accordance with Table D-1. Do toilets that are in an unsanitary condition count for purposes of determining if that minimum number has been provided?

Answer: No. Title 29 CFR 1926.51(c)(1) states:

Toilets at construction jobsites. (1) Toilets shall be provided for employees according to the following table:
 
Table D-1
Number of employees Minimum number of facilities
 
20 or less . . . . 1
 
20 or more . . . . 1 toilet seat and 1 urinal per 40 workers.
 
200 or more . . . . 1 toilet seat and 1 urinal per 50 workers.
 

The purpose of this standard is to ensure that employees will not suffer the adverse health effects that can result if toilets are unavailable. The standard in §1926.51(c)(1) requires that a specified minimum number of toilets be "provided" based on the number of employees.

As we stated in a June 7, 2002, letter to Mr. Nicholas Mertz and a February 23, 2005, e-mail to Ms. Mary Nall, toilets that take too long to get to are not considered to have been "provided" because they are not readily available:

[T]he 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.'

Similarly, toilets that are unsanitary are unusable and therefore are not "available." Consequently, a toilet is not "provided" under §1926.51(c)(1) if it is in an unsanitary condition.

One way for an employer to meet its obligation regarding sanitary conditions under this standard is to use the servicing schedule in the ANSI Z4.3-1995, Section 3 ("For Sanitation — Nonsewered Waste-Disposal Systems — Minimum Requirements") industry consensus standard as a guide. For example, the ANSI standard calls for a toilet used by up to 10 people to be serviced1 a minimum of once per week. Under Table D-1 of the OSHA standard, if there were 20 employees, the employer would be required to provide at least one toilet. Applying the ANSI servicing schedule to a situation where one toilet has been provided for 20 employees, an employer that had the toilet serviced twice per week would likely be providing a toilet in a sanitary condition.2 Similarly, a toilet for 10 employees, if serviced once per week, would likely be provided in a sanitary condition.

The Agency is mindful of the fact that, over the last several years, there have been over 1,100 construction worker fatalities each year due to falls, electrocutions, struck-by, and caught-in-between accidents. OSHA's construction enforcement priorities consequently remain focused primarily on those hazards. While the sanitation hazard addressed in this letter is not a part of that category, it is nonetheless a significant problem in the construction industry, and employers do have an obligation to take reasonable steps to address it.

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 In the ANSI standard, "servicing" is defined as "the emptying of waste and the cleaning of the toilet facility. . . ." [ back to text ]

2 We note that 29 CFR 1926.51(c) does not require toilet facilities to be in immaculate condition to be considered sanitary. [ back to text ]