November 17, 2004

Mr. Joe Mocka
Roughneck Concrete
Drilling & Sawing Co.
8400 Lehigh Avenue
Morton Grove, IL 60053-2617

Re: 29 CFR 1926.501(b)(4); 1926.502(i); CPL 02-00-124; Duty of a subcontractor to cover floor holes in a Multi-Employer worksite.

Dear Mr. Mocka:

This is in response to your letter submitted on April 12, 2004, to the Occupational Safety and Health Administration (OSHA). We apologize for the delay in responding.

We have paraphrased your question as follows:

Question (1): Scenario: A subcontractor ("sub") enters into a contract to drills holes in a floor. During the contract discussions, the sub offers to include the cost of pre-fabricated, adjustable hole covers in the contract. The general contractor ("GC") declines, stating that the GC will cover the holes itself. In this scenario, is the sub permitted to rely on the GC to cover the holes? If the GC failed to cover a hole, would the sub be subject to an OSHA citation?

Answer
Section 29 CFR 1926.501(b)(4) states:

Holes.
(i) Each employee on walking/working surfaces shall be protected from falling through holes (including skylights) more than 6 feet (1.8 m) above lower levels, by personal fall arrest systems, covers, or guardrail systems erected around such holes.
(ii) Each employee on a walking/working surface shall be protected from tripping in or stepping into or through holes (including skylights) by covers.
(iii) Each employee on a walking/working surface shall be protected from objects falling through holes (including skylights) by covers.

These requirements must be met at the work site described in your scenario. Under OSHA's Multi-Employer Citation Policy, CPL 02-00-124, responsibility for covering the holes depends on what role each employer is serving at the work site. An employer has OSHA obligations under the policy if it serves in one or more of the following roles: creating, exposing, correcting, or controlling employer.¹ Note, however, that matters involving contract law, such as who must bear the cost of the covers, for example, are beyond the purview of this office. The responsibilities of the various employers on this work site in fulfilling OSHA requirements are discussed below.

The multi-employer policy provides guidance to employers on how citations are to be issued for violations on work sites where more than one employer is citable for the same hazard. Pursuant to the policy's two-step analysis, employers must: (1) determine whether they have any responsibility for compliance with OSHA standards on the work site and, if so, (2) what steps must be taken to meet those requirements. See CPL 02-00-124 sections (X)(A)(1)-(2).

The subcontractor as an exposing employer
The sub is an "exposing employer," since its own employees are exposed to the hazard posed by the holes. The sub must take reasonable steps within its ability to ensure that its employees are protected.

If the GC has stated that it will cover the holes, the sub must check to make sure that the GC follows through promptly and adequately so that the sub's employees will be protected from the hazard. If, for example, the GC fails to promptly and adequately take steps to cover the holes, the sub retains the responsibility under §1926.501 to implement measures within its ability to protect its employees. Issues regarding which party must bear the cost of the protective measures in that instance are contractual, rather than OSHA issues.

The subcontractor as a creating employer
The employer that creates a hazard is considered a "creating employer" and has an obligation to meet OSHA requirements to protect the employees of other employers. However, in your scenario, the sub offers to cover the holes, but the GC specifically excludes the covering of the holes from the sub's contract. In such circumstances the sub would be considered to have met its creating employer obligations (with respect to having drilled the holes in the first place) by offering to cover the holes. At that point, the GC will have assumed the responsibility of correcting the hazard. (See discussion of The GC as a correcting employer below.)

This raises the question of what happens if the GC does not cover the holes in a timely manner, the sub covers the holes itself with its own covers (thereby ensuring its exposing employer responsibilities have been met) and, at the completion of the sub's work, the sub removes its covers. Although the removal of the covers would create a new hazard, in this case the sub would be considered to have met its OSHA obligations as a creating employer regarding that hazard once it gives adequate notice to the GC of its intention to remove them.²

The GC as a correcting employer
In your scenario the GC specifically takes on the responsibility of covering the holes drilled by the sub. The GC thus becomes a "correcting employer" and must immediately cover the holes, as required under §1926.502(i), to fulfill its OSHA obligations and protect all employees on the worksite from the hazard.

Question (2): Does the "Hole in One Cover" manufactured by Paragon Products meet the criteria requirements for covers for holes in floors?

Answer:
OSHA is generally precluded from approving or endorsing specific products. The variable working conditions at job sites and possible alteration or misapplication of an otherwise safe piece of equipment could easily create a hazardous condition beyond the control of the equipment manufacturer. However, where appropriate, OSHA tries to give employers some guidance to help them assess whether products are appropriate to use in light of OSHA requirements.

Strength requirement
Floor hole covers must meet the applicable parts of §1926.502(i). Section 1926.502(i)(2) states:

[C]overs shall be capable of supporting without failure, at least twice the weight of employees, equipment, and materials that may be imposed on the cover at any one time.

The engineering report provided with your letter states that the test unit used in that report has a failure pressure of 1,300 pounds when the cover is mounted over a 12-inch cylindrical opening and a failure pressure of 2,900 pounds when mounted over a 6-inch cylindrical opening.³ If the cover were to be used over a 12-inch cylindrical opening, the total weight that would potentially be imposed on the cover must be 650 pounds or less to fall within this requirement. If the cover were used over a 6-inch cylindrical opening, the total weight must be 1,450 pounds or less. Given these results, it seems likely that the cover would fulfill the strength requirements in §1926.502(i)(2) in most situations.

Securing requirement
Section 1926.502(i)(3) states that:

All covers shall be secured when installed so as to prevent accidental displacement by the wind, equipment, or employees.

The installation instructions for the "Hole in One" cover provided with your letter show that the cover has adjustable securing wedges that must be adjusted to fit the hole. So long as the adjustments are completed as specified in the manufacturer's instructions, the cover is likely to fulfill the requirement in §1926.502(i)(3).

Marking requirement
Section 1926.502(i)(4) states that:

All covers shall be color-coded or they shall be marked with the word "HOLE" or "COVER" to provide warning of the hazard.

The Features page for the "Hole in One" cover provided with your letter shows that these covers are a "safety orange color for easy recognition." Because orange is a color typically used by the construction industry to signal a potential hazard, the cover color meets the color-coding requirement in §1926.502(i)(4).

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

¹ Definitions of each role are provided in the policy. [ back to text ]

² This assumes that the sub is unaware of any lack of intention by the GC to cover the holes. [ back to text ]

³ Please note the engineering report page sent does not specify whether the cover tested is the same model as that described in the letter. This answer assumes that the results in this report refer to the "Hole in One" cover and that the engineering data contained is valid. [ back to text ]