Originally published by Seyfarth Shaw LLP.
By James L. Curtis, Mark A. Lies, II, Adam R. Young, Ilana R. Morady, and Craig B. Simonsen
Seyfarth Synopsis: The U.S. Occupational Safety and Health Administration (OSHA) has issued a standard interpretation cautioning employers on the use of headphones to listen to music on a construction site.
Many employers permit the use of headphones and music in a variety of industrial and construction settings, presumably to improve employee morale and retention. Other employers play music across the workplace with speakers and stereos, such as in a warehouse or operating room. Industry safety sources warn any benefits gained from the use of headphones in the workplace will be overshadowed by safety hazards. Specifically, headphones can present a safety hazard when operating large machinery by impeding the operator’s awareness of surroundings.
There are numerous instances of serious accidents and fatalities where employees were violating rules and wearing headphones, often while operating powered industrial trucks and other vehicles. In the warehousing environment, listening to headphones presents essentially the same risks as distracted driving. The risk is not only to the operators, but also pedestrians who may be in the nearby area. Another risk is that loose headphones can become caught in machinery or pose an electrical hazard.
In Federal OSHA’s recent standard interpretation, OSHA finds that “there is no specific OSHA regulation that prohibits the use of headphones on a construction site.” However, while the use of headphones on a construction site may be permissible at managerial discretion, such use may create or augment other hazards apart from noise. First, OSHA notes that the added decibels from headphones may cause a hazard to employee hearing and may undermine a hearing conservation program. Second, OSHA notes the related risks of distraction and inability to hear equipment, alarms, or warnings. OSHA cautions that “listening to music may produce a safety hazard by masking environmental sounds that need to be heard, especially on active construction sites where attention to moving equipment, heavy machinery, vehicle traffic, and safety warning signals may be compromised.” OSHA further explains that “struck-by hazards are one of the four leading causes of death in construction.
OSHA has issued citations to employers following industrial accidents where employees have operated equipment (such as forklifts) while wearing headphones and have been unable to hear horns or other audio warnings. OSHA has cited the employers for failure to adequately train forklift operators or for failure to use the horn or other safety devices. Other OSHA regulations require employers to train employees about audio warning devices, for example, fire alarms, and to have the ability evacuate the workplace. Headphones can create a serious impediment to timely evacuation and result in a tragedy.
The recent standard interpretation echoes other warnings about the use of headphones in the workplace. In its “Protecting Yourself from Noise in Construction” booklet, OSHA indicates that “neither portable music player headphones nor hearing aids are substitutes for hearing protective devices.” In its “Agricultural Safety Fact Sheet,” OSHA directs employers to “instruct workers and operators not to use personal mobile phones, headphones or any items that could create a distraction”, and “never wear earbuds or headphones when working near farm vehicles and equipment.”
In addition, employers have a general duty under the Occupational Safety and Health Act to provide work environments free from any recognized hazard likely to cause serious injury or death. The guidance from OSHA is confused — OSHA advises employers to disallow headphone use where it is used in a way to create a recognized hazard. But the employees with the headphones control the volume and content. Accordingly, employers likely have no knowledge of whether employee music choices would create a hazard. OSHA’s ambivalent enforcement position leaves open the possibility that an accident with a distracted employee using headphones could result in a General Duty Clause citation to the employer. In terms of safety and OSHA compliance, employers would be wise to limit headphone use and train employees not to use headphones or music in a way that creates a distraction or inhibits their ability to hear alarms or equipment.
For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Health (OSHA/MSHA) Team.
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