OSHA Enforcement for Residential Fall Protection

It’s been a long and winding road for the enforcement of the OSHA Fall Protection Standard for residential construction, but a recent decision by the 7th Circuit Court of Appeals makes it appear that June 16, 2011 will be E-Day. The Court held that OSHA is free to start enforcing the 1994 regulation against employers engaged in residential construction despite the 17 year delay in doing so.    

The Regulatory and Litigation History

In 1994, OSHA published Subpart M - Fall Protection, to the Safety Health Regulations for Construction, 29 CFR 1926.500, et. seq. During the rulemaking process OSHA received many comments that requiring conventional fall protection, i.e., guardrails, safety nets, or personal fall arrest systems, could increase rather than decrease the hazards for workers performing residential construction. In order to accommodate these concerns an exception was added to the final rule.

§ 1926.501(b)(13) "Residential construction." Each employee engaged in residential construction activities 6 feet (1.8 m) or more above lower levels shall be protected by guardrail systems, safety net system, or personal fall arrest system unless another provision in paragraph (b) of this section provides for an alternative fall protection measure. Exception: When the employer can demonstrate that it is infeasible or creates a greater hazard to use these systems, the employer shall develop and implement a fall protection plan which meets the requirements of paragraph (k) of 1926.502. Note: There is a presumption that it is feasible and will not create a greater hazard to implement at least one of the above-listed fall protection systems. Accordingly, the employer has the burden of establishing that it is appropriate to implement a fall protection plan which complies with 1926.502(k) for a particular workplace situation, in lieu of implementing any of those systems.

Adding the exception didn’t fully address the concerns, and in 1995 OSHA issued an interim enforcement policy stating that it would not enforce the final rule against residential builders. Four years later OSHA issued a Directive that included a plain language revision and “interim fall protection compliance guidelines for certain residential construction activities.” STD-03-00-001, June 16, 1999. The 1999 Directive permitted builders to use alternative procedures in lieu of conventional protection, and eliminated the obligation for the employer to prove infeasability that was required by the final rule.

The 1999 Directive also stated that the fall protection plan did not need to be written nor did it need to be site specific. All in all, the 1999 Directive, although it did require the use of some type of fall protection, was a far cry from the requirements of the final rule. Since 1999, many residential builders have structured their fall protection programs around the suggestions of the 1999 Directive and, in lieu of conventional fall protection, provided controlled access zones, safety monitors and slide guards.

In 1999 OSHA also issued an advance notice of rulemaking seeking comments on whether § 1926.501(b)(13) should be amended. That rulemaking process went on for over 10 years and OSHA finally decided that the standard was fine as written. In December of 2010 it issued another Directive rescinding the 1999 Directive and its compliance guidelines for residential construction. In doing so, OSHA indicated that it intended to start enforcing the 1994 standard as written against residential builders starting on June 16, 2011.

The OSH Act provides that any safety and health standard created by the Secretary of Labor is subject to review by a federal court of appeals. Faced with pending enforcement, the National Roofing Contractor’s Association (NRCA) brought suit to attempt to block the 2010 Directive claiming that it was unauthorized rulemaking. In a nutshell, the Court noted that the NRCA didn’t want the 2010 Directive annulled as much as it wanted the 1999 Directive reinstated, and if the 2010 Directive was invalid because of unauthorized rulemaking, then the 1999 Directive was in the same boat. The Court characterized the 1999 Directive as one of lenience and the 2010 Directive as one of strict enforcement, and which course the agency chooses to pursue is left to their prosecutorial discretion.

The ‘New’ Requirements

Although they have been on the books since 1994, the “new” requirements of § 1926.501(b)(13) present a significant change for residential builders. The most significant change may lie with the burden to prove infeasibility or greater hazard. In considering changes to the rule, OSHA was given presentations by a number of safety professionals and manufacturers of safety equipment, some of which may not have been avoidable in 1994. OSHA subsequently stated that it was “not persuaded that there are significant safety or feasibility problems with the use of such equipment for the vast majority of residential construction activities.” The 1999 Directive had a presumption of infeasibility for residential construction that has been removed, and it is now up to the builder to prove infeasibility or greater hazard.

If the employer claims infeasibility or greater hazard, it must comply with § 1926.502(k) which requires that the plan be written and site specific. A plan that is developed for certain models of homes will only be considered to be site specific if it addresses all of the fall protection issues at a particular site. § 1926.502(k) has 10 subparts that require such things as changes to the plan must be made by a qualified person, that a copy be maintained at the jobsite, that it document why conventional fall protection is infeasible or constitutes a greater hazard, as well as identifying each employee who is designated to enter controlled access zones.

And so, having been down that long and winding road of enforcement policies, compliance guidelines, rulemaking notices, rescinded directives, and appeals court decisions, the residential builder has been led back to OSHA’s door, behind which is a 17-year-old standard with which compliance is mandatory.