§ 1926.1 - Purpose and scope.
(a) This part sets forth the safety and health standards promulgated by the Secretary of Labor under section 107 of the Contract Work Hours and Safety Standards Act. The standards are published in Subpart C of this part and following subparts.
(b) Subpart B of this part contains statements of general policy and interpretations of section 107 of the Contract Work Hours and Safety Standards Act having general applicability.
§ 1926.2 - Variances from safety and health standards.
(a) Variances from standards which are, or may be, published in this part may be granted under the same circumstances whereunder variances may be granted under section 6(b)(A) or 6(d) of the Williams-Steiger Occupational Safety and Health Act of 1970 (29 U.S.C. 65). The procedures for the granting of variances and for related relief under this part are those published in Part 1905 of this title.
(b) Any requests for variances under this section shall also be considered requests for variances under the Williams-Steiger Occupational Safety and Health Act of 1970, and any requests for variances under Williams-Steiger Occupational Safety and Health Act with respect to construction safety or health standards shall be considered to be also variances under the Construction Safety Act. Any variance from a construction safety or health standard which is contained in this part and which is incorporated by reference in Part 1910 of this title shall be deemed a variance from the standard under both the Construction Safety Act and the Williams-Steiger Occupational Safety and Health Act of 1970.
§ 1926.3 - Inspections - right of entry.
(a) It shall be a condition of each contract which is subject to section 107 of the Contract Work Hours and Safety Standards Act that the Secretary of Labor or any authorized representative shall have a right of entry to any site of contract performance for the following purposes:
(a)(1) To inspect or investigate the matter of compliance with the safety and health standards contained in Subpart C of this part and following subparts; and
(a)(2) To carry out the duties of the Secretary under section 107(b) of the Act.
(b) For the purpose of carrying out his investigative duties under the Act, the Secretary of Labor may, by agreement, use with or without reimbursement the services, personnel, and facilities of any State or Federal agency. Any agreements with States under this section shall be similar to those provided for under the Walsh-Healey Public Contracts Act under 41 CFR Part 50-205.
§ 1926.4 - Rules of practice for administrative adjudications for enforcement of safety and health standards.
(a) The rules of practice for administrative adjudications for the enforcement of the safety and health standards contained in Subpart C of this part and the following subparts shall be the same as those published in Part 6 of this title with respect to safety and health violations of the Service Contract Act of 1965 (69 Stat. 1035), except as provided in paragraph (b) of this section.
(b) In the case of debarment, the findings required by section 107(d) of the Act shall be made by the hearing examiner or the Assistant Secretary of Labor for Occupational Safety and Health, as the case may be. Whenever, as provided in section 107(d)(2), a contractor requests termination of debarment before the end of the 3-year period prescribed in that section, the request shall be filed in writing with the Assistant Secretary of Labor for Occupational Safety and Health who shall publish a notice in the FEDERAL REGISTER that the request has been received and afford interested persons an opportunity to be heard upon the request, and thereafter the provisions of Part 6 of this title shall apply with respect to prehearing conferences, hearings and related matters, and decisions and orders.
§ 1926.10 - Scope of subpart.
(a) This subpart contains the general rules of the Secretary of Labor interpreting and applying the construction safety and health provisions of section 107 of the Contract Work Hours and Safety Standards Act (83 Stat. 96). Section 107 requires as a condition of each contract which is entered into under legislation subject to Reorganization Plan Number 14 of 1950 (64 Stat. 1267), and which is for construction, alteration, and/or repair, including painting and decorating, that no contractor or subcontractor contracting for any part of the contract work shall require any laborer or mechanic employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards promulgated by the Secretary by regulation.
§ 1926.11 - Coverage under section 103 of the act distinguished.
(a) Coverage under section 103. It is important to note that the coverage of section 107 differs from that for the overtime requirements of the Contract Work Hours and Safety Standards Act. The application of the overtime requirements is governed by section 103, which subject to specific exemptions, includes:
(1) Federal contracts requiring or involving the employment of laborers or mechanics (thus including, but not limited to, contracts for construction), and
(2) contracts assisted in whole or in part by Federal loans, grants, or guarantees under any statute "providing wage standards for such work." The statutes "providing wage standards for such work" include statutes for construction which require the payment of minimum wages in accordance with prevailing wage findings by the Secretary of Labor in accordance with the Davis-Bacon Act. A provision to section 103 excludes from the overtime requirements work where the Federal assistance is only in the form of a loan guarantee or insurance.
(b) Coverage under section 107. To be covered by section 107 of the Contract Work Hours and Safety Standards Act, a contract must be one which
(1) is entered into under a statute that is subject to Reorganization Plan No. 14 of 1950 (64 Stat. 1267); and
(2) is for "construction, alteration, and/or repair, including painting and decorating."
§ 1926.13 - Interpretation of statutory terms.
(a) The terms construction, alteration, and repair used in section 107 of the Act are also used in section 1 of the Davis-Bacon Act (40 U.S.C. 276a), providing minimum wage protection on Federal construction contracts, and section 1 of the Miller Act (40 U.S.C. 270a), providing performance and payment bond protection on Federal construction contracts. Similarly, the terms contractor and subcontractor are used in those statutes, as well as in Copeland (Anti-Kickback) Act (40 U.S.C. 276c) and the Contract Work Hours and Safety Standards Act itself, which apply concurrently with the Miller Act and the Davis-Bacon Act on Federal construction contracts and also apply to most federally assisted construction contracts. The use of the same or identical terms in these statutes which apply concurrently with section 107 of the Act have considerable precedential value in ascertaining the coverage of section 107.
(b) It should be noted that section 1 of the Davis-Bacon Act limits minimum wage protection to laborers and mechanics "employed directly" upon the "site of the work." There is no comparable limitation in section 107 of the Act. Section 107 expressly requires as a self-executing condition of each covered contract that no contractor or subcontractor shall require "any laborer or mechanic employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety" as these health and safety standards are applied in the rules of the Secretary of Labor.
(c) The term subcontractor under section 107 is considered to mean a person who agrees to perform any part of the labor or material requirements of a contract for construction, alteration or repair. Cf. MacEvoy Co. v. United States, 322 U.S. 102, 108-9 (1944). A person who undertakes to perform a portion of a contract involving the furnishing of supplies or materials will be considered a "subcontractor" under this part and section 107 if the work in question involves the performance of construction work and is to be performed:
(1) Directly on or near the construction site, or
(2) by the employer for the specific project on a customized basis. Thus, a supplier of materials which will become an integral part of the construction is a "subcontractor" if the supplier fabricates or assembles the goods or materials in question specifically for the construction project and the work involved may be said to be construction activity. If the goods or materials in question are ordinarily sold to other customers from regular inventory, the supplier is not a "subcontractor." Generally, the furnishing of prestressed concrete beams and prestressed structural steel would be considered manufacturing; therefore a supplier of such materials would not be considered a "subcontractor." An example of material supplied "for the specific project on a customized basis" as that phrase is used in this section would be ventilating ducts, fabricated in a shop away from the construction job site and specifically cut for the project according to design specifications. On the other hand, if a contractor buys standard size nails from a foundry, the foundry would not be a covered "subcontractor." Ordinarily a contract for the supplying of construction equipment to a contractor would not, in and of itself, be considered a "subcontractor" for purposes of this part.
§ 1926.14 - Federal contract for "mixed" types of performance.
(a) It is the intent of the Congress to provide safety and health protection of Federal, federally financed, or federally assisted construction. See, for example, H. Report No. 91-241, 91st Cong., first session, p. 1 (1969). Thus, it is clear that when a Federal contract calls for mixed types of performance, such as both manufacturing and construction, section 107 would apply to the construction. By its express terms, section 107 applies to a contract which is "for construction, alteration, and/or repair." Such a contract is not required to be exclusively for such services. The application of the section is not limited to contracts which permit an overall characterization as "construction contracts." The text of section 107 is not so limited.
(b) When the mixed types of performances include both construction and manufacturing, see also 1926.15(b) concerning the relationship between the Walsh-Healey Public Contracts Act and section 107.
§ 1926.15 - Relationship to the Service Contract Act; Walsh-Healey Public Contracts Act.
(a) A contract for "construction" is one for nonpersonal service. See, e.g., 41 CFR 1-1.208. Section 2(e) of the Service Contract Act of 1965 requires as a condition of every Federal contract (and bid specification therefor) exceeding $2,500, the "principal purpose" of which is to furnish services to the United States through the use of "service employees," that certain safety and health standards be met. See 29 CFR Part 1925, which contains the Department rules concerning these standards. Section 7 of the Service Contract Act provides that the Act shall not apply to "any contract of the United States or District of Columbia for construction, alteration, and/or repair, including painting and decorating of public buildings or public works." It is clear from the legislative history of section 107 that no gaps in coverage between the two statutes are intended.
(b) The Walsh-Healey Public Contracts Act requires that contracts entered into by any Federal agency for the manufacture or furnishing of materials, supplies, articles, and equipment in any amount exceeding $10,000 must contain, among other provisions, a requirement that "no part of such contract will be performed nor will any of the materials, supplies, articles or equipment to be manufactured or furnished under said contract be manufactured or fabricated in any plants, factories, buildings, or surroundings or under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of said contract." The rules of the Secretary concerning these standards are published in 41 CFR Part 50-204, and express the Secretary of Labor's interpretation and application of section 1(e) of the Walsh-Healey Public Contracts Act to certain particular working conditions. None of the described working conditions are intended to deal with construction activities, although such activities may conceivably be a part of a contract which is subject to the Walsh-Healey Public Contracts Act. Nevertheless, such activities remain subject to the general statutory duty prescribed by section 1(e). Section 103(b) of the Contract Work Hours and Safety Standards Act provides, among other things, that the Act shall not apply to any work required to be done in accordance with the provisions of the Walsh-Healey Public Contracts Act.
§ 1926.16 - Rules of construction.
(a) The prime contractor and any subcontractors may make their own arrangements with respect to obligations which might be more appropriately treated on a jobsite basis rather than individually. Thus, for example, the prime contractor and his subcontractors may wish to make an express agreement that the prime contractor or one of the subcontractors will provide all required first-aid or toilet facilities, thus relieving the subcontractors from the actual, but not any legal, responsibility (or, as the case may be, relieving the other subcontractors from this responsibility). In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract.
(b) By contracting for full performance of a contract subject to section 107 of the Act, the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work.
(c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility.
(d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act.
§ 1926.20 - General safety and health provisions.
(a) Contractor requirements.
(a)(1) Section 107 of the Act requires that it shall be a condition of each contract which is entered into under legislation subject to Reorganization Plan Number 14 of 1950 (64 Stat. 1267), as defined in 1926.12, and is for construction, alteration, and/or repair, including painting and decorating, that no contractor or subcontractor for any part of the contract work shall require any laborer or mechanic employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety.
(b) Accident prevention responsibilities.
(b)(1) It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part.
(b)(2) Such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.
(b)(3) The use of any machinery, tool, material, or equipment which is not in compliance with any applicable requirement of this part is prohibited. Such machine, tool, material, or equipment shall either be identified as unsafe by tagging or locking the controls to render them inoperable or shall be physically removed from its place of operation.
(b)(4) The employer shall permit only those employees qualified by training or experience to operate equipment and machinery.
(c) The standards contained in this part shall apply with respect to employments performed in a workplace in a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, Trust Territory of the Pacific Islands, Wake Island, Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act, Johnston Island, and the Canal Zone.
(d)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process.
(d)(2) On the other hand, any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for the industry to the extent that none of such particular standards applies.
(e) In the event a standard protects on its face a class of persons larger than employees, the standard shall be applicable under this part only to employees and their employment and places of employment.
§ 1926.21 - Safety training and education.
(a) General requirements. The Secretary shall, pursuant to section 107(f) of the Act, establish and supervise programs for the education and training of employers and employees in the recognition, avoidance and prevention of unsafe conditions in employments covered by the act.
(b) Employer responsibility.
(b)(1) The employer should avail himself of the safety and health training programs the Secretary provides.
(b)(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.
(b)(3) Employees required to handle or use poisons, caustics, and other harmful substances shall be instructed regarding the safe handling and use, and be made aware of the potential hazards, personal hygiene, and personal protective measures required.
(b)(4) In job site areas where harmful plants or animals are present, employees who may be exposed shall be instructed regarding the potential hazards, and how to avoid injury, and the first aid procedures to be used in the event of injury.
(b)(5) Employees required to handle or use flammable liquids, gases, or toxic materials shall be instructed in the safe handling and use of these materials and made aware of the specific requirements contained in Subparts D, F, and other applicable subparts of this part.
(b)(6)(i) All employees required to enter into confined or enclosed spaces shall be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required. The employer shall comply with any specific regulations that apply to work in dangerous or potentially dangerous areas.
(b)(6)(ii) For purposes of paragraph (b)(6)(i) of this section, confined or enclosed space means any space having a limited means of egress, which is subject to the accumulation of toxic or flammable contaminants or has an oxygen deficient atmosphere. Confined or enclosed spaces include, but are not limited to, storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewers, underground utility vaults, tunnels, pipelines, and open top spaces more than 4 feet in depth such as pits, tubs, vaults, and vessels.
§ 1926.23 - First aid and medical attention.
First aid services and provisions for medical care shall be made available by the employer for every employee covered by these regulations. Regulations prescribing specific requirements for first aid, medical attention, and emergency facilities are contained in Subpart D of this part.
§ 1926.24 - Fire protection and prevention.
The employer shall be responsible for the development and maintenance of an effective fire protection and prevention program at the job site throughout all phases of the construction, repair, alteration, or demolition work. The employer shall ensure the availability of the fire protection and suppression equipment required by Subpart F of this part.
§ 1926.25 - Housekeeping.
(a) During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.
(b) Combustible scrap and debris shall be removed at regular intervals during the course of construction. Safe means shall be provided to facilitate such removal.
(c) Containers shall be provided for the collection and separation of waste, trash, oily and used rags, and other refuse. Containers used for garbage and other oily, flammable, or hazardous wastes, such as caustics, acids, harmful dusts, etc. shall be equipped with covers. Garbage and other waste shall be disposed of at frequent and regular intervals.
§ 1926.26 - Illumination.
Construction areas, aisles, stairs, ramps, runways, corridors, offices, shops, and storage areas where work is in progress shall be lighted with either natural or artificial illumination. The minimum illumination requirements for work areas are contained in Subpart D of this part.
§ 1926.27 - Sanitation.
Health and sanitation requirements for drinking water are contained in Subpart D of this part.
§ 1926.28 - Personal protective equipment.
(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.
(b) Regulations governing the use, selection, and maintenance of personal protective and lifesaving equipment are described under Subpart E of this part.
§ 1926.31 - Incorporation by reference.
(a) The specifications, standards and codes of agencies of the U.S. Government and organizations which are not agencies of the U.S. Government, to the extent they are legally incorporated by reference in this part, have the same force and effect as other standards in this part. The locations where these specifications, standards, and codes may be examined are as follows:
(1) Offices of the Occupational Safety and Health Administration, U.S. Department of Labor, Frances Perkins Building, Washington, DC. 20210.
(2) The Regional and Field Offices of the Occupational Safety and Health Administration, which are listed in the U.S. Government Manual.
(b) Any changes in the specifications, standards and codes incorporated by reference in this part and an official historic file of such changes are available at the offices referred to in paragraph (a) of this section. All questions as to the applicability of such changes should also be referred to these offices.
§ 1926.32 - Definitions.
The following definitions shall apply in the application of the regulations in this part:
(a) Act means section 107 of the Contract Work Hours and Safety Standards Act, commonly known as the Construction Safety Act (86 Stat. 96; 40 U.S.C. 333).
(b) ANSI means American National Standards Institute.
(c) Approved means sanctioned, endorsed, accredited, certified, or accepted as satisfactory by a duly constituted and nationally recognized authority or agency.
(d) Authorized person means a person approved or assigned by the employer to perform a specific type of duty or duties or to be at a specific location or locations at the jobsite.
(e) Administration means the Occupational Safety and Health Administration.
(f) 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.
(g) Construction work. For purposes of this section, "Construction work" means work for construction, alteration, and/or repair, including painting and decorating.
(h) Defect means any characteristic or condition which tends to weaken or reduce the strength of the tool, object, or structure of which it is a part.
(i) Designated person means "authorized person" as defined in paragraph (d) of this section.
(j) Employee means every laborer or mechanic under the Act regardless of the contractual relationship which may be alleged to exist between the laborer and mechanic and the contractor or subcontractor who engaged him. "Laborer and mechanic" are not defined in the Act, but the identical terms are used in the Davis-Bacon Act (40 U.S.C. 276a), which provides for minimum wage protection on Federal and federally assisted construction contracts. The use of the same term in a statute which often applies concurrently with section 107 of the Act has considerable presidential value in ascertaining the meaning of "laborer and mechanic" as used in the Act. Laborer generally means one who performs manual labor or who labors at an occupation requiring physical strength; mechanic generally means a worker skilled with tools. See 18 Comp. Gen. 341.
(k) Employer means contractor or subcontractor within the meaning of the Act and of this part.
(l) Hazardous substance means a substance which, by reason of being explosive, flammable, poisonous, corrosive, oxidizing, irritating, or otherwise harmful, is likely to cause death or injury.
(m) Qualified means one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience, has successfully demonstrated his ability to solve or resolve problems relating to the subject matter, the work, or the project.
(n) Safety factor means the ratio of the ultimate breaking strength of a member or piece of material or equipment to the actual working stress or safe load when in use.
(o) Secretary means the Secretary of Labor.
(p) SAE means Society of Automotive Engineers.
(q) Shall means mandatory.
(r) Should means recommended.
(s) Suitable means that which fits, and has the qualities or qualifications to meet a given purpose, occasion, condition, function, or circumstance.
§ 1926.33 - Access to employee exposure and medical records.
Note: The requirements applicable to construction work under this section are identical to those set forth at 1910.1020 of this chapter.
§ 1926.34 - Means of egress.
(a) General. In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency.
(b) Exit marking. Exits shall be marked by a readily visible sign. Access to exits shall be marked by readily visible signs in all cases where the exit or way to reach it is not immediately visible to the occupants.
(c) Maintenance and workmanship. Means of egress shall be continually maintained free of all obstructions or impediments to full instant use in the case of fire or other emergency.