Adjusting to changing safety requirements for fall protection
By Gary Auman, Legal counsel for NFBA
This is the first of a series of articles on various business related legal topics for all contractors, but which should provide important information for small post-frame contractors. While many of us would like to ignore the myriad regulations and standards that apply to our businesses, it behooves us all to do whatever we can to achieve compliance with as many standards and regulations as possible. This series will touch upon both safety- and business-related topics. This first topic is one of immediate importance to all post-frame contractors.
Fall protection has been a challenge for post-frame building contractors since fall protection requirements were first established by Occupational Safety & Health Administration. Fall protection requirements became even more onerous and difficult for post-frame contractors when the threshold for needing fall protection moved to six feet, since much of the work accomplished in post-frame construction is done at levels above six feet.
The OSHA fall protection standards are found in 29 CFR Sections 1926.501, 1926.502, and 1926.503. In a nutshell, these standards require conventional fall protection must be provided to all employees working more than six feet above the level below them. This situation exists whether the employees are working in an area where there are a lot of floor openings, open leading edges of floors, or any other type of work where the employee could possibly fall six feet or more.
The conventional fall protection required by these standards consists of safety nets, guardrails or personal fall arrest systems. A personal fall arrest system requires a full body harness, a lanyard and a safety line. There are only two exceptions to the fall protection requirements that have any application to post-frame construction. The first of these permits employees working on a roof where the slope of the roof is less than 4/12 to use warning lines and safety monitors in lieu of conventional fall protection to provide safety for their employees. The second exception is found in Section 1926.502(k), which permits the employer, if he is working in residential construction, to develop a written fall protection program stating the need for alternatives to conventional fall protection systems. Such a written fall protection plan must contain information as to why one of the three conventional fall protection types is either not feasible or creates a greater hazard to the employee, along with the alternative that will be used by the contractor on the job to which the fall protection plan applies.
Shortly after the above listed fall protection requirements were finalized, OSHA promulgated a set of interim guidelines for fall protection in residential construction.
While these guidelines provided for alternative measures of fall protection for employees working in residential construction, they also permitted the employer to use a fall protection plan, which did not have to be in writing. So, rather than having to develop a written fall protection plan for each project that the employer intended to work on, the employer could have determined that conventional fall protection was not feasible or that it created a greater hazard and that an alternative fall protection plan for a particular project was needed. If inspected, the contractor could discuss his decision and subsequent actions with the compliance officer without having to provide written copy of an alternative plan. This permitted the contractor to justify the use of non-conventional fall protection on a job-to-job basis without having to put anything down in writing each time he needed relief from using conventional fall protection.
The interim guideline removed much of the stress from the small contractor to develop a written fall protection program for each project in which conventional fall protection could not be used. In our industry, contractors were able to develop various forms of alternative fall protection and employ them on a job-by-job basis, knowing that if inspected by OSHA, as long as they had any fall protection in effect, they would most likely not be cited because they could state that they were operating under the interim fall protection guidelines.
The interim guidelines were instituted by OSHA primarily at the request of the National Association of Home Builders. This organization lobbied OSHA shortly after the new fall protection standard was put into place with a six foot requirement. They were able to convince OSHA it would be a near impossibility for a residential contractor to provide conventional fall protection while building a single family dwelling. Unfortunately for the post-frame industry, residential construction continued to move forward in developing conventional fall protection techniques to the point that in the summer of 2010, they felt they no longer required the interim guidelines since they were going to be able to comply with conventional fall protection requirements. On December 16, 2010, Dr. David Michaels, assistant secretary of labor for OSHA, declared that as of June 16, 2011, the interim guidelines for residential fall protection would be rescinded. This action by Michaels caught many industries and employers by surprise. The National Roofing Contractors Association attempted to challenge Michaels’ rescission of the interim guidelines, but their attempt was dismissed by the Court of Appeals.
On June 9, 2011, OSHA issued a directive indicating it would provide a grace period, until September 16, 2011, for the enforcement of the conventional fall protection requirements in residential construction. The intent of this delay in implementation of the conventional fall protection requirement was to provide all contractors who were impacted by the rescission of the interim guidelines, ample time to comply with the conventional fall protection requirements.
During this 90-day period, contractors in residential construction will not be cited by OSHA if they are continuing to provide fall protection under the interim guidelines in lieu of conventional fall protection. If OSHA visits a jobsite where conventional fall protection is not being used, but where the contractor is in compliance with the interim guidelines, a hazard alert notice will be provided to the contractor reminding him that the interim guidelines are no longer in effect and he must be in compliance with conventional fall protection guidelines. On the first inspection during the grace period, no citations will be issued, but this will be the contractor’s only notice to get into compliance. Following receipt of such a notice, the contractor will be held accountable under conventional fall protection guidelines. All employers will be held to compliance to use conventional fall protection as of September 16, 2011.
OSHA has also indicated in the same directive that if a contractor is observed providing no fall protection to its employees, it will be cited as not being in compliance with either the interim guidelines or conventional fall protection. I would suspect, because of the amount of notification and clarification being provided by OSHA with regard to the rescission of the interim guidelines, that an employer might well find itself being cited for a willful fall protection violation after September 16, 2011, or before that if they are employing no fall protection to protect their employees.
OSHA provides a definition for residential construction in its “frequently asked questions,” which were issued with the original fall protection standard. OSHA’s interpretation of residential construction for purposes of the fall protection requirements of 1926.501(b)(13) combines two mandatory elements. First, the end use of the structure being built must be intended for use as a home or dwelling. The second mandatory requirement is the structure being built must be constructed using traditional wood-frame construction materials and methods. The definition also provides that the “limited use of structural steel in a predominantly wood framed home, such as a steel I-beam to help support wood framing, does not disqualify a structure from being considered residential.”
The definition also states that: “traditional wood-frame construction materials and methods will be characterized by:
- framing materials: wood (or equivalent cold-formed heat metal stud) framing, not steel or concrete; wooden floor joist and restructures.
- exterior wall structure: wood (or equivalent cold-formed sheet metal stud), framing, or masonry brick or block.
- methods: traditional wood frame construction techniques.”
Finally, Section 1926.501(b)(13) indicates in a note that OSHA believes there is a presumption that conventional fall protection in residential construction is feasible and will not create a greater hazard to implement. Accordingly, OSHA requires the employer has the burden of establishing it is appropriate to implement a fall protection plan which complies with the requirements in 1926.502(k) for particular workplace situation in lieu of implementing conventional fall protection. I would suspect now that the fall protection plan will have to been in writing greater scrutiny will be given by OSHA to the reasons the contractor lists in support of its conclusion that conventional fall protection will be either not feasible or create a greater hazard.
As you can see from the foregoing, if you have been operating under the belief that when constructing a barn or other agricultural or commercial building you are in compliance with the interim guidelines for residential construction, because you are using wood-frame construction and construction techniques which are traditional for residential construction, you may very well be in violation of the fall protection standard. Unless the structure you are building is intended to be a dwelling; wood construction alone is not enough to invoke the requirement so of the interim guidelines.
For post-frame contractors who are engaged in typical post-frame construction, if there is any question as to the end use of the building, I suggest you go to the OSHA website at www.osha.gov. This website will answer many of your questions for adopting conventional fall protection methods to post frame. When you get onto the website click on Compliance Guidance for Residential Construction on the OSHA homepage, and then go to the Guidance Document on Fall Protection and Residential Construction which is available under the Compliance Assistance heading under the Residential Fall Protection page. This guidance document will be very beneficial to you to determine different methods of conventional fall protection that can be employed when forming post frame construction.
In my next article, I will summarize the information provided in the guidance document as well as the various components that are now required under the written fall protection plan, if you have the option of developing a written fall protection plan for that construction.
I have one additional comment with regard to the rescission of the interim guidelines for fall protection in residential construction. As I’ve already indicated, OSHA has provided a 90-day implementation period for the rescission to take effect. You need to be aware that many states are already adopting OSHA’s position with regard to fall protection and residential construction. Already, the state of Indiana has issued a notice that it will be following OSHA’s lead and will begin enforcing the conventional fall protection requirement for all types of construction on October 1, 2011. Region VII of federal OSHA, which encompasses Kansas, Nebraska, Missouri, and Iowa, has indicated that it has put into effect a Regional Emphasis Program to enforce conventional fall protection in residential construction. This regional program will last through December 31, 2012. Region VII promises its compliance officers will be paying close attention to any residential type construction it observes to ensure conventional fall protection is being provided to employees on those jobs.
A Regional Emphasis Program provides OSHA with probable cause to enter into and inspect any jobsite. If you are a post-frame contractor in the Region VII area, you should be sure you use the remaining period of the 90-day grace period wisely and develop your conventional fall protection programs for the work you will be performing as quickly as possible.
This effort to address fall protection in residential construction is just one small item on OSHA’s “to-do” list. In future articles, I will try to keep you posted on this topic and others that can and will have a significant impact on your business.
Gary Auman of Dunlevey Mahan & Furry is legal counsel for the National Frame Building Association.