High-visibility gear not subject to OSHA Personal Protective Equipment (PPE) standards

in sleet or snow...Excerpts from OSHA 2006 decision dismissing complaint against the U.S. Postal Service

On November 13, 2003, at twilight, Evelyn Medeiros, a United States Postal Service employee, was struck by a car while crossing the street at a stop sign while delivering mail on her postal route in Fall River, Massachusetts. After the accident, the driver told Ms. Medeiros that he didn’t see her. At the time of the accident, Ms. Medeiros was wearing Postal Service issued bomber jacket and rain pants. Five days after the accident, a formal complaint was filed with OSHA on the behalf of letter carriers in Fall River, Massachusetts alleging that the USPS required employees to deliver mail after dark without supplying them with reflective clothing that made them easily visible in the dark to vehicular traffic.

The Occupational Safety and Health Administration (“OSHA”) conducted an inspection of the facility.  As a result of the inspection, on January 23, 2004, OSHA issued to USPS a one-item serious citation alleging a violation of 29 C.F.R. 1910.132(c) with a total proposed penalty of $2,625.00.

As amended, the citation alleges a violation of section 5(a)(1) of the Act as follows:
 The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to motor vehicle struck by hazards while delivering mail in low light and dark.

 Fall River mail carrier routes: Adequate high visibility safety apparel such as fluorescent and retroreflective clothing, vests, jackets, and/or hats were not provided for carriers delivering mail on city streets to improve visibility and prevent carriers from being struck by motor vehicles.

 Among other methods, one feasible and acceptable abatement method to correct this hazard is to require the wearing of safety apparel that complies with ANSI/ISEA 107-1999.

Although the Secretary established that postal letter carriers were exposed to the recognized hazard of crossing streets in low light and dark conditions, the evidence fails to demonstrate that there was a feasible method of eliminating or materially reducing the hazard. The Secretary introduced several accident reports to establish that letter carriers are occasionally hit by oncoming traffic. The issue, however, is not whether such accidents happen, but whether they are the result of low light or dark conditions and whether the likelihood of their occurrence could be materially reduced by the use of ANSI-complaint fluorescent or retroreflective outer gear. In that respect, these accident reports fall short. For example, even though one of its recommendations was the use of high visibility vests, it is clear from the USPS Serious Accident Investigation Board Report for the accident that occurred in Kansas City, that lack of visibility played no part in the accident:

 The Secretary also suggests that the USPS could either hire additional carriers to enable the mail routes to be completed earlier, or have the carriers begin their routes earlier. A criteria for determining whether an abatement measure is feasible is whether the proposed measure is cost prohibitive. Among the relevant considerations are whether the measure would threaten the company’s economic viability, jeopardize its long-term profitability and competitiveness and whether it can pass the cost on to the consumer. While measures that take employees completely off the streets before sunset would certainly eliminate the hazard created by low light or dark conditions, there is no evidence in the record to suggest that such measures would be economically feasible 

footnote:  That the USPS is a federally chartered business does not mean that it is immune from normal business economics.

Accordingly, the Secretary failed to meet its burden by establishing the feasibility of implementing these alternative measures.

Based on the foregoing, it is ORDERED that the citation for a violation of section 5(a)(1) of the Act and the penalty proposed therefore are VACATED.

See full decision (PDF)