By Pat Miller, Rod Smith, and Matt Morrison

OSHA has issued its long-awaited standard on confined spaces in construction. The new rule will take effect on August 3, 2015. Previously, construction contractors only had to comply with minimal training requirements when it came to confined spaces. Contractors (and general industry employers who have construction activities taking place at their facilities) now will have to comply with a rigorous and complicated set of standards regarding confined spaces. While the new standard is similar in many respects to the general industry confined space standard that has been around for quite some time, there are key differences between the two. Some of the unique features of the new construction standard are:

• Detailed requirements for different types of employers on multi-employer worksites. The rule delineates three basic types of employers. First, a “Host” employer that owns or manages the property where the construction work is taking place. Second, a “Controlling Contractor” that has the overall responsibility for construction at the worksite. And, finally, “Entry Employers” whose employees enter permit-required confined spaces. The Host employer has the obligation to provide information about permit-required confined spaces at its location to the Controlling Contractor who, in turn, is required to pass along that information to the Entry Employers. Entry Employers are required to give the Controlling Contractor information about their entry program and hazards they encounter in the space.
• A requirement that a “competent person” identify and evaluate all confined spaces in which one or more of the employees it directs may work, and identify any permit-required spaces.
• The new standard allows for the suspension, rather than the cancellation, of a permit in the event that there are changes from the initial entry conditions or when there is an unexpected event requiring evacuation. Before reentry, the space must be returned to the entry conditions listed on the permit.
• The requirement of continuous atmospheric monitoring, unless the employer can show that periodic monitoring is sufficient or that the proper equipment is not commercially available.
• The requirement that an employer’s permit-required confined space program provide for an “early warning system” that continuously monitors for non-isolated engulfment hazards. An example given by OSHA is the engulfment hazard in a sewer posed by flash flooding. In that case a continuous monitor, either electronic or human, would be required. Parts of the new construction standard are similar to the general industry requirements, but the new standard adds clarification to those requirements. For example, the new standard makes it clear that training is to be provided in a language that the employee understands. The new rule also states that an employer must ensure that any outside rescue service it relies upon for rescue notify the employer “as soon as the services become unavailable.” Of course, employers might find it difficult to find an emergency response provider, such as 911, willing to do this. The result very well could be that employers will have to utilize in-house rescue in order to comply with the new standard. General industry employers should also be aware that these “clarifications” indicate how OSHA likely will interpret the general industry confined space standard.

It is important to note that while the new standard will apply to confined spaces in construction such as manholes, sewers, bins, boilers, tanks, storm drains, and many others, it will not apply to construction work regulated by OSHA’s excavation standards or to work covered by the standards relating to underground construction, caissons, cofferdams, compressed air, and diving.

The new standard, much like its counterpart in general industry, is very complex, and we recommend that all affected employers – construction and general industry – begin their compliance efforts right away.

In order to provide more information and analysis as to the new requirements, Sherman & Howard’s OSHA Practice Group will be holding a webinar on June 16, 2015, at 10:00 a.m. MDT.

Rod Smith, Pat Miller, Chuck Newcom and Matt Morrison are part of Sherman & Howard’s Labor & Employment Law Department. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

Sherman & Howard L.L.C. has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

©2015 Sherman & Howard L.L.C.                                                                                  May 8, 2015