Protective clothing for hot tar and asphalt construction work

April 17, 1997

MEMORANDUM FOR: Regional Administrators; State Designees

FROM: Frank Strasheim, Acting Deputy Assistant Secretary

SUBJECT: Citations for the wearing of short pants by employees engaged in hot tar and asphalt construction work.

In response to concerns raised by the Senate Appropriations Committee, OSHA has reviewed its enforcement policy regarding the standard on personal protective equipment (PPE) in the construction industry and the hazards arising from employees wearing short pants during hot tar and asphalt construction activities. The committee has expressed concern that the agency may apply the standard without taking into account the risk that may be imposed by literal compliance with the standard. The standard that has sometimes been cited for violations relating to the use of PPE, including protective clothing, is 29 CFR 1926.28(a). Federal citation policy issued some time ago, however, is that the use of appropriate PPE be governed by 29 CFR 1926.95(a) rather than 1926.28(a).
As you know, 1926.95(a) requires protective equipment to be worn "whenever it is necessary by reason of hazards...." Thus, where employees are exposed to the hazard of hot tar or asphalt getting on their skin and burning them while doing work on a road surface, it is appropriate that proper skin covering be worn to provide protection. While the standard does not specify any particular kind of protection, such as long pants, employers do have the responsibility to decide which workers are exposed to the hazard and thus require protective clothing and which methods should be used to comply with the standard.
Other factors may exist, however, which would pose a greater safety or health hazard than that of being burned by hot tar or asphalt. In such cases a citation of the PPE standard for lack of skin protection may not be appropriate. Naturally, workers at the site who are not exposed to the hazard of hot tar or asphalt coming into contact with their skin would not be required by the regulation to wear any kind of PPE intended to provide protection against that danger.
To ensure consistency in the future application of 1926.95(a), compliance officers shall be instructed to carefully balance the need for personal protective clothing, such as long pants, during hot tar and asphalt operations against the need for clothing that is appropriate for severe environmental conditions, such as extremely warm weather.
State Plans: Regional Administrators should discuss this policy with their State Designees and ask that they adopt an equivalent policy.
[Corrected 3/20/2007]