D.C. Circuit Addresses OSHA Eyewash Station Requirement for Construction Industry

In 1970, when Congress passed the Occupational Safety and Health Act (the “Act”)  and created the Occupational Safety and Health Administration ( “OSHA”), it initially gave OSHA two years to adopt existing, industry-specific federal safety standards without going through formal rule-making procedures. OSHA thus adopted the “quick-drench eyewash rule” which required eyewash stations at manufacturers and suppliers with federal contracts where employees came into contact with corrosive materials. OSHA later applied the rule more broadly to include all manufacturers and suppliers and, twenty-three years later in 1993, it formally adopted the rule for the construction industry.

In Kiewit Power Constructors Co. v. Secretary of Labor, No. 18-1282 (D.C. Cir. 2020), OSHA issued a citation to a construction company, Kiewit, for failing to provide eyewash stations for workers at a construction site in Tennessee. Kiewit challenged the standard, stating that OSHA went beyond the scope of its powers in extending the standards that existed before its creation to the construction industry without going through the formal rule-making process. The Court of Appeals of the D.C. Circuit held that OSHA acted within the scope of its powers when it extended the eyewash station rule to the construction industry. The Court held that OSHA is permitted to extend standards to industries in which the harm is familiar, and the chemical and physical hazards which characterize a modern industry are applicable to both manufacturing and construction industries.

However, in Kiewit, the court addressed Kiewit’s argument that the eyewash stations were not feasible due to lack of plumbing at construction sites and the mobile nature of the industry, and reiterated that the employer’s obligation is flexible under OSHA’s rule. The court explained that, if the standard is physically impossible or would prevent performance of the work, employers may instead take alternative protective measures. As reiterated by the court, whether an employer has provided suitable facilities for quick drenching is judged on the totality of the relevant circumstances including the nature, strength, and amounts of the corrosive material, the configuration of the work area, and the distance between the area where the corrosive chemicals are used and the washing facilities.

Construction companies should be mindful of this standard when analyzing the applicability of the quick drench eyewash rule and/or the appropriateness of alternative measures. If your company has questions, please do not hesitate to contact one of our attorneys.