The Occupational Safety and Health Administration (“OSHA”) has issued a letter of interpretation in response to questions submitted by an employer about the use of headphones on construction sites: https://www.osha.gov/laws-regs/standardinterpretations/2019-09-04. The letter addresses two (2) specific issues: (1) the use of headphones with built-in volume limiters marked by manufacturers as “OSHA approved”; and (2) whether a specific OSHA regulation exists that prohibits the use of headphones for listening to music on construction sites.
OSHA began its answer by clarifying “there is no specific OSHA regulation that prohibits the use of headphones on a construction site.” The letter went on to reference OSHA’s Occupational Noise Exposure limits contained in 29 CFR § 1926 and cautioned employers that portable music players and noise cancelling headsets are not appropriate substitutes for ear protective devices that employers are required to provide when sound levels exceed OSHA’s standards. Additionally, use of such devices has the potential to create additional hazards on construction sites if they mask “environmental sounds that need to be heard.” Finally, OSHA reminded employers that, like all other Department of Labor agencies, “OSHA does not register, certify, approve, or otherwise endorse commercial or private sector entities, products, or services.”
Because OSHA explicitly articulated that no OSHA regulations exist that specifically prohibit the use of headphones on construction sites, it is up to the employer’s discretion, after reviewing the circumstances of the job site and work performed, to determine whether headphone use is permissible. As long as the use of headphones does not “create or augment other hazards apart from noise,” employers may decide to allow employees to wear headphones while working.
In summary, OSHA’s letter of interpretation provides that while no specific OSHA standard prohibits employers from permitting employees to use headphones on construction sites, employers must head the following: (1) noise cancelling headphones and music players are not a substitute for required ear protection when noise levels exceed those included in 29 CFR § 1926; and (2) employers must ensure that the use of these devices does not create or augment safety hazards on the job site. Therefore, employers should exercise discretion by reviewing the circumstances of a particular construction site and the specifics of the jobs performed before allowing employees to use headphones.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.