On May 4, 2015, the Occupational Safety and Health Administration (OSHA) issued a new regulation on confined spaces in the construction industry. Previously, there was only one rule for construction employers — provide training to employees who enter confined spaces. The new regulation (29 C.F.R. § 1926.1201, et seq.) imposes additional requirements, including site evaluation by qualified personnel, posting notices to employees, adopting written safety and rescue protocols for certain hazardous confined spaces, continuous monitoring of hazards, and communication and coordination between different employers present at the site.

The standard went into effect on Aug. 3, 2015, but OSHA postponed full enforcement for 60 days, providing leniency to employers making good faith efforts to comply. That grace period expired on Oct. 2, 2015, meaning covered employers must now be in full compliance with the new standard.

The new construction industry standard for confined spaces is very similar to the general industry standard (29 C.F.R. § 1910.146), but it has a number of additional requirements. Although the general industry standard does not apply to construction employers, many choose to follow it voluntarily. Those who do follow it need to understand the additional requirements imposed by the new construction standard.

OSHA found the new construction industry standard necessary (as opposed to simply adopting the general industry standard) because construction worksites are uniquely dynamic. Working conditions and confined spaces constantly and rapidly change as projects progress, and there are generally multiple employers on site performing different tasks that could affect conditions within a confined space. Employee turnover is also inherently greater, as construction employees tend to work at multiple sites performing short-term tasks. Accordingly, OSHA now requires a greater degree of communication and coordination between construction employers, heightened awareness of hazards in confined spaces and increased control over entry into confined spaces.

Covered Employers

The new rules apply to all employers engaged in construction activities, except for excavation, underground construction and diving activities, which are covered by separate regulations. At a construction site, there are multiple employers subject to the new rules: (1) the “host employer” is the owner or manager of the site; (2) the “controlling contractor” is the employer with overall responsibility for construction at the site, usually referred to as a general contractor; and (3) the “entry employer” is any employer who directs an employee to enter a permit space, usually a subcontractor. There can be overlap between these definitions.

Confined Spaces Defined

A confined space is one that is large enough for a worker to enter, has limited means for entry and exit and is not designed for continuous occupancy. Common examples include sewers, pits, crawl spaces, manholes, attics, boilers, bins, tanks, incinerators and ducts.

A permit-required confined space (“permit space”) is a confined space with one or more of the following characteristics: (1) contains, or potentially contains, a hazardous atmosphere; (2) contains material that has the potential for engulfing an entrant; (3) has an internal configuration that could trap an entrant; or (4) contains another serious safety or health hazard. As discussed in more detail below, if permit spaces are present at a worksite, employers must take certain steps to safeguard employees.

Requirements Under the Confined Spaces in Construction Standard

Worksite Inspection. Before any employer begins work at a site, a “competent person” must inspect the site to identify all confined spaces, as well as any confined spaces that are permit spaces. A “competent person” is one who is capable of identifying the hazards of permit spaces and who has the authority to eliminate them promptly. The person must also be knowledgeable about appropriate testing methods necessary to identify hazards. If a non-permit space changes in use or configuration, each entry employer must have a competent person reevaluate the space.

Notice to Employees. Any employer who identifies or receives notice of a permit space must inform employees of its existence and hazards by posting danger signs, or by some other effective means. That employer must also inform employees’ authorized representatives, as well as the controlling contractor, in a timely manner other than by posting. Additionally, the employer must take steps to prevent unauthorized employees from entering the permit space.

Written Permit Space Program. If an employer directs employees to enter a permit space (i.e., if it is an entry employer), a written permit space program must be implemented at the site and made available to employees and their representatives prior to and during entry. The program must identify and evaluate hazards; implement measures to prevent unauthorized access; implement measures for the issuance, use and cancellation of entry permits; implement measures for safe entry and exit and the elimination of hazards that arise; and implement measures for continuous monitoring of certain hazards. The program must provide PPE at no cost to employees, provide appropriate training to each individual involved in entry operations, and provide at least one attendant outside the permit space while entry operations are underway. The program must also implement procedures to rescue entrants from permit spaces when necessary.

Communication and Coordination for Permit Space Entry. Prior to any entry on the site, the host employer must inform the controlling contractor of any known permit spaces, as well as associated hazards and entry precautions previously implemented. The controlling contractor must then provide that information, and any other information it has regarding the identified permit spaces, to any other employers entering the permit space. Before entry operations begin, each entry employer must obtain all information regarding the permit spaces from the controlling contractor and must inform the controlling contractor of the permit space program it will follow. The controlling contractor must coordinate entry operations with entry employers where more than one entity is entering the permit space, or where permit space entry operations are performed by only one entry employer in close proximity to other activities that could create hazards in the permit space. Once entry operations are completed, the controlling contactor must debrief each entity who entered a permit space to discuss the permit space program followed, as well as any hazards encountered during entry. The controlling contractor must then inform the host employer of such information.

Differences Between the Construction and General Industry Standards

As previously mentioned, the construction industry standard is similar to the general industry standard, but it has additional requirements to address conditions that are unique to and generally present at construction sites. The following requirements are included in the construction standard and go beyond the requirements of the general industry standard:

• Requiring communication and coordination measures for permit space entry when there are multiple employers present at a construction site.
• Requiring a competent person to evaluate the site.
• Requiring continuous atmospheric monitoring whenever possible.
• Requiring continuous monitoring of engulfment hazards.
• Allowing for the suspension of a permit, instead of cancellation, in the event of changes from the entry conditions list on the permit or an unexpected event requiring evacuation of the space. The space must be returned to the entry conditions listed on the permit before re-entry.
• Requiring that entry employers who do not have a complete permit system prevent workers’ exposure to physical hazards through elimination of the hazard or isolation methods such as lockout/tagout.
• Requiring that employers who are relying on local emergency services arrange for responders to give the employer advance notice if they will be unable to respond for a period of time (because they are responding to another emergency, attending department-wide training, etc.).
• Requiring employers to provide training in a language and vocabulary that the worker understands.

If you would like more information regarding OSHA’s new regulation, please contact one of our Construction attorneys.