OSHA Extends Confined Spaces In Construction Enforcement Date For ‘Good Faith’ Employers

The new deadline for employers OSHA deems as trying diligently to meet the new requirements is Oct. 2, pushed back from Aug. 3, according to an internal memo obtained by Inside OSHA Online. OSHA will still consider the rule effective next month, but has devised a new policy on what circumstances call for immediate citations.

Employers during that period will nonetheless be expected to have trained employees as required by the new subpart, or meet the confined spaces training requirements of the older general construction code.

Several building sector trade groups had sought an extension of the overall effective date, citing burdens and the scope of the rule, which was issued in May. The rule generally layers confined space requirements already applicable to general industry onto construction work sites, though some aspects of the new rule differ significantly from the older one.

OSHA’s move to give qualifying employers more time to meet the construction mandates occurs as, separately, a Texas home builders group sues the agency in the Fifth Circuit Court of Appeals over the rule, calling it “arbitrary and capricious, not supported by substantial evidence in the record considered as a whole, an abuse of discretion, or otherwise not in accordance with law”.

The group of building trade groups asking for an extension of the effective date told OSHA in a June letter that “due to the scope of this new rule and the wide ranging impact it will have on the entire construction industry, we believe stakeholders will need additional time to fully review and understand the requirements, and develop the resources needed to properly comply with the standard.”

OSHA initially gave employers 90 days to begin complying with the regulations, but a Thursday (July 8) memo from the national office delays the full enforcement date, noting that industry requests “have indicated a need for additional time for training and the acquisition of equipment necessary to comply with the new standard.”

Officials said they will not delay the effective date, but instead will postpone full enforcement of the rule where warranted. “During this 60-day period, OSHA will not issue citations to an employer making good faith efforts to comply [italics in memo] with the new standard, as long as the employer is in compliance with either the training requirements of the new standard” found at 29 CFR 1926.1207, or the training requirements found at former 29 CFR 1926.21(b)(6)(i).

Several factors come into play as OSHA exercises the enforcement discretion, the memo says:

• “If the employer has not trained its employees as required under the new standard, whether the employer has scheduled such training.”
• “If the employer does not have the equipment required for compliance with the new standard, including personal protective equipment, whether the employer has ordered or otherwise arranged to obtain such equipment required for compliance and is taking alternative measures to protect employees from confined space hazards.”
• “Whether the employer has engaged in any additional efforts to educate workers about confined space hazards and protect workers from those hazards.”
• — Christopher Cole ()