The Occupational Safety and Health Administration has recently addressed two significant safety and health issues of great importance to post-frame contractors: fall protection and heat stress.
An effective discussion of how fall-protection requirements affect the post-frame contractor cannot begin without a consideration of past misconceptions that have plagued the post-frame industry with regard to OSHA and fall protection. Most of the post-frame contractors with whom I have discussed safety and OSHA regulations since I began working with the National Frame Building Association in the early 1990s have felt secure concerning OSHA compliance requirements because of the nature of the post-frame industry. Up to and even past 1992, post-frame contractors felt that because they did primarily agricultural or rural construction, they could avoid OSHA’s scrutiny. Although this perception was correct to a certain extent, recent history has indicated that it is no longer accurate. With each passing month, post-frame contractors are increasingly being scrutinized by OSHA for compliance.
In addition, post-frame contractors have believed their methods for preventing employee falls have been sufficient to meet OSHA’s fall-protection standard. Again, though these methods may have been sufficient to meet the old fall-protection standard, they do not meet current OSHA fall-protection requirements. Since 1997 OSHA has required conventional fall protection be used when employees are working six feet or more above lower levels. Post-frame contractors have typically ignored this requirement, believing the alternative methods of fall protection they have employed provide adequate protection. Post-frame contractors have had employees lock their legs around a vertical post set in the ground and the girt closest to them as they install other wall girts and move up the side of the building. In many cases, employees have relied on their sense of balance while setting trusses and walking on or working off the top plate. When this issue came to the attention of the National Frame Building Association, the association immediately moved to try to get an exemption for post-frame construction from using conventional fall protection. The effort was undertaken partly because of the agricultural nature of post frame but primarily because post frame is wood-frame construction, just as is residential construction. The effort to garner an exemption did not bear fruit, but OSHA’s Interim Fall Protection Compliance Guidelines for Residential Construction (STD 03-00-001), which went into effect December 8, 1995, and remained in effect until December 2010, provided a safe harbor for post-frame contractors.
Under the interim guidelines, a post-frame contractor engaged in residential construction could use alternative effective methods of fall protection without the necessity of doing a feasibility analysis or developing a written fall-protection plan. However, in December 2010, David Michaels, the administrator of OSHA, declared that, effective June 2011, the Interim Fall Protection Compliance Guidelines for Residential Construction would be rescinded. The National Roofing Contractors Association challenged this decision, but to no avail. Since then, Michaels postponed the effective date of the rescission every three months, but the most recent deadline of March 15, 2013, passed without an extension. As of March 15, therefore, the interim guidelines are no longer available to anyone engaged in any form of residential construction.
What does this decision mean for post-frame contractors? Quite simply, post-frame contractors now come under the conventional rules for fall protection found in Title 29 of the Code of Federal Regulations, Sections 1926.500–503. The requirements for conventional fall protection state that an employee who is exposed to a fall of more than six feet must be protected by either a personal fall-arrest system (which includes a full-body harness, lifeline and lanyard), standard guardrails or safety nets. No other options for fall protection are permitted under these standards.
An exception is still made for employers engaged in leading-edge work, precast concrete erection work, and residential construction work. Post-frame contractors engaged in one of these three forms of construction may qualify for the option of developing a written fall-protection plan, as provided by Section 1926.502(k). The first requirement is to prove conventional fall protection is technically infeasible or creates a greater hazard to your employees. In his rescission of the Interim Fall Protection Compliance Guidelines for Residential Construction, Michaels stated that OSHA would not consider economic infeasibility a valid reason to permit a contractor to opt for a written fall-protection plan. Post-frame contractors therefore have three choices for fall protection (a personal fall-arrest system, standard guardrails or safety nets), with a fourth option — a written fall-protection plan — available to those engaged in residential construction work.
The written fall-protection plan is a giant step away from the very informal unwritten alternative fall-protection plan permitted by the interim guidelines. The written fall-protection plan must meet these requirements:
The plan must be prepared by a qualified person and developed specifically for the site where the residential construction work is being performed, and it must be kept up-to-date. For each new building, a qualified person must prepare a new written fall-protection plan.
Any changes in the fall-protection plan must be approved by a qualified person, preferably the person who prepared the original plan.
A copy of the fall-protection plan with all approved changes must be maintained at the jobsite.
The fall-protection plan must be implemented under the supervision of a competent person. Please note: a competent person is not the same as a qualified person. According to OSHA, a qualified person is someone who by education, training or experience has specific talents that enable him or her to understand and implement the technical intricacies necessary to develop, in this case, an effective and safe alternative fall protection plan. In the area of fall protection, a competent person is someone who knows all of the OSHA standards and regulations that apply to fall protection, can recognize fall-protection hazards on the jobsite and has the independent authority to take corrective action up to and including stopping work to correct any hazards observed. All employees who are exposed to potential falls and come under the fall-protection standard must be trained by the competent person.
The plan must document the reasons that the use of conventional fall-protection systems is not feasible or would create a greater hazard.
The plan must include a written discussion of other methods that will be used to reduce or eliminate the fall hazard for workers who cannot be provided with fall protection from conventional fall-protection systems. For example, if scaffolds, ladders or vehicle-mounted work platforms or bucket trucks will be used on the jobsite, you must indicate that those are the means to be used and show they will reduce the hazards of falling for your employees.
The plan must identify each location where conventional fall-protection methods cannot be used. These locations must then be classified as controlled access zones, and the employer must comply with the criteria in Section 1926.502(g), which addresses controlled access zones.
Where no other alternative measures have been implemented, the employer must implement a safety monitoring system in conformance with Section 1926.502(h). Please note that in work areas other than those like low-sloped roofs, this monitoring system may not be sufficient.
The fall-protection plan must include a statement that provides the name or another form of identification for each employee designated to work in the controlled access zones. Only employees whose names are on the list may enter the controlled access zones. Of course, this list may be expanded or shortened as the need arises, but any employee who is to work in the controlled access zone needs to be trained by the competent person about the hazards that may arise.
In the event an employee falls or a similar serious incident (such as a near miss) occurs, the employer must investigate the circumstances of the fall or other incident to determine whether the fall-protection plan needs to be changed and implement those changes to prevent similar falls or incidents.
As you can see, although the alternative fall-protection plan allows employers to opt out of using conventional fall protection for employees working more than six feet above the ground, it requires a great deal of effort, time and cost to develop and implement. Remember: a new written fall-protection plan must be developed each time you choose to take advantage of this option. Recently OSHA has given some indication that one plan might be acceptable for more than one structure as long as the structures to which it would apply were identical. It is still too early to tell whether any additional latitude will be provided under this requirement.
Fall-protection issues cannot be taken lightly. Fall-protection citations have been on the top-10 list of most frequent OSHA citations for the construction industry for the past several years. As post-frame construction becomes more visible to OSHA, the scrutiny of post-frame contractors will increase, and with it, the likelihood of citations for noncompliance. Avoiding the use of conventional fall protection or failing to develop an appropriate fall-protection plan is unwise. First, and most important, this approach will expose your employees to significant fall hazards and injuries. Second, the fine for noncompliance may be higher than it would have been had you shown an effort to comply; you will be required to pay a substantial fine and will still need to correct or abate the hazard in order to continue operating your business.
The second area of concern is heat stress injuries. We all are aware of problems that arise when employees work in hot environments, but most employers in the construction industry did not really take the heat-exposure issue seriously until the summer of 2012. In July 2012, an Occupational Safety and Health Review Commission administrative law judge issued a decision upholding a general-duty-clause violation against an employer in the southwestern part of the country who had an employee die from a heat-related illness. The decision of that judge included several steps he felt were reasonable for all employers to take to avoid injuries related to heat stress.
About the same time the judge’s decision was issued, Thomas Galassi, director of OSHA’s Directorate of Enforcement Programs, sent a memorandum to all regional administrators concerning outdoor inspections related to extreme heat. In the memorandum Galassi listed four points for a compliance officer to consider when inspecting a jobsite in a warm environment. The memorandum also contained a chart adapted from the National Weather Service setting the heat index for employees who are working in a warm environment. The employee’s safety is dependent upon the dry-bulb temperature, the relative humidity of the work environment and other weather conditions. Galassi’s memorandum concluded by listing heat-related inspection questions the compliance officer might consider asking the employer.
General-duty-clause violations are issued when an employer exposes employees to recognized hazards that are causing or are likely to cause death or serious physical harm. The memo instructs the compliance officer to consult the chart to determine whether an employee is exposed to a heat index in or above the danger zone. Such exposure is considered to be exposure to a hazard. The compliance officer will conclude that the hazard is recognized by the employer if employees are noted to be showing signs or symptoms of heat exposure, if they have made complaints regarding the heat, if the National Oceanic and Atmospheric Administration has issued a heat advisory because of the heat index, if the employer has indicated awareness of the heat hazard or if the employer’s industry has issued guidelines or information about heat hazards. The conclusion that the hazard to which the employee is exposed was causing or was likely to cause death or serious physical harm is drawn from the fact the employee, because of the exposure to excessive temperatures, might develop heat exhaustion or heat stroke or might die.
Finally, the compliance officer will determine whether methods to abate the heat hazard are feasible. The officer will consider whether workers were provided with immediate access to water, rest and shade and ask whether an acclimatization program for new employees on the job site or for employees returning to work from an extended time away has been implemented. The compliance officer will also inquire whether you have a work-rest schedule and whether you have a climate-controlled area close to the work site in which employees can cool down.
In his decision concerning heat stress, the administrative law judge concluded employers should develop a written work-rest regimen that requires employees to have a period of rest following a period of work. This work-rest regimen can be reviewed by a physician and may vary depending on the heat index. Evidence it has been implemented on any jobsite where the heat index is in the danger zone is required. According to the judge, merely having cool water on the jobsite and available to employees is not sufficient; if the heat index is in the danger zone, the employer should encourage employees to drink five to seven ounces of water every 15–20 minutes. The judge also indicated the rest location should be provided for employees in close proximity to the work site and in a climate-controlled area where the temperature is 75 degrees or cooler. Finally, the judge’s decision indicates employers should train all employees to recognize symptoms of heat stress and to take proper action when they notice those symptoms in themselves or a fellow employee. I recommend you develop a tool box or tailgate safety talk on this topic and provide this talk at least once a month to your employees, especially during the warmer work months when the heat index could be in the danger zone.
An example may be helpful. The chart in the memorandum indicates if the dry-bulb temperature is 80 degrees and the relative humidity is 60 percent, the heat index is 91, which requires extreme caution. However, the chart cautions the heat index values were devised for shade and light wind conditions and exposure to sunshine can increase the heat index value by up to 15 degrees.
Therefore, if the employee is working in the sun with a dry-bulb temperature of 80 degrees and a relative humidity of 60 percent, the heat index moves from 91 (warranting extreme caution) up to 106 , which puts the employee in the danger zone and makes the application of the heat-stress program mandatory.
Fall protection and heat stress are significant safety and health issues for your employees and should not be taken lightly. Even if you have never had a problem in these areas before, you should use whatever efforts are necessary to implement programs that protect your employees both from falls and from exposure to excessive heat.
Gary Auman of Dunlevey, Mahan and Furry is legal counsel for the National Frame Building Association.