Back to Basics: OSHA Rescinds Interim Fall Protection Standard

Fall Hazards in Residential Construction

The leading cause of injury and death in the residential construction industry occurs from falls from elevation on the work site. A change in the Occupational Health and Safety Administration (OSHA) regulations attempts to bridge the gap between this tragic reality and the builders as they attempt to remain OSHA compliant.

While employers in the industry have enjoyed a relaxed standard since 1995, the agency has announced that builders and subcontractors would no longer be permitted to remain compliant under an interim standard that had in reality exempted those responsible for ensuring the safety of their workers from the full effect of OSHA fall protection standards.

Hence, effective June 16, 2011, the agency made fall protection requirements in residential construction more stringent than they had been for the previous 15 years.

OSHA Defines Residential Construction

The purpose of this article is to highlight the developments involving fall protection and the mandates enacted by OSHA specific to residential construction.

In kind, a builder/employer must understand what it means to be OSHA compliant so that unnecessary injury and death can be reduced and/or eliminated. Typically residential construction usually consists of wooden floor joists, wood framing, and common wood frame construction techniques. Interestingly, OSHA additionally considered expanding the scope of residential construction to include “light commercial construction”, however, the federal agency ultimately rejected that approach. The scope of residential construction is therefore limited by specific methods and procedures used and by the “end use” of the structure. If the end use is not a home or dwelling, consultation of separate and distinct regulations are necessary.

Fall Protection Comes Full Circle as OSHA Goes Back to Basics

In 1994, OSHA enacted fall protection for the construction industry as a whole under subpart M at 29 CFR 1926.501(b) (13). This section requires the use of fall protection in the form of guardrail systems, safety nets, and personal fall arrest systems (PFAS) used for work involving elevations of six (6) feet or more in height above lower levels.

An exception was written into the requirement that permitted builders to use a site-specific fall protection plan only if they could show that the fall protection required was “infeasible” or posed a “greater hazard”. What happened next was no great surprise as builders and organizations that represented their interests opposed these regulations as over burdensome and not workable in the field.

OSHA responded to these complaints of the residential construction industry with an interim guideline in December of 1995 and backed off from the full protection afforded to workers under the initial promulgated regulation. From 1995 onward, builders could remain OSHA compliant under a temporary guideline known as STD 3.1. This temporary guideline commonly referred to as the “interim standard” permitted builders to use alternative fall protection measures at their own discretion without an approved written, specific fall protection site plan.

The standard was confusing to many and, in 1999, OSHA issued STD 3-0.1A which attempted to clarify some of the confusion created by STD 3.1. The revised interim standard was designated STD 03-00-001 and was intended to be a plain language replacement for STD 3.1. Thereafter, and upon the development of “advances in the types and capability of commercially available fall protection equipment” since the promulgation of 29 CFR 1926.501(b) (13), OSHA published the Advanced Notice of Proposed Rulemaking (ANPR) which announced OSHA’s intent to rescind the interim standard.

OSHA invited comment on whether compliance with the more stringent requirements of 29 CFR 1926.501(b) (13) were considered in the industry as feasible. OSHA also invited commentary on the definitional parameters of “residential construction”.

The Rulemaking Commentary

Over the next ten years OSHA received comments from the residential construction industry which encompassed, trade organizations such as the National Association of Home Builders (NAHB), the Residential Construction Employers Council (RCEC), as well as unions, contractors, and safety consultants.

Commentary from the industry trade groups focused on the lack of proper anchor points for PFAS, the problems associated with the use of safety equipment, such as tripping hazards created by the safety lines of the PFAS. Conversely, commentary from other groups, such as the Safety Equipment Association as well as construction safety consultants, persuaded OSHA that the concerns voiced by the industry as to the feasibility and/or “greater dangers” were unfounded.

OSHA was presented with information as to the availability of both temporary and permanent roof anchorage connectors designed to provide a fall arrest attachment point at the roof peak or along the structural members of the roof. In addition, OSHA received information that even the perceived tripping hazards can be eliminated by PFAS which uses retractable lifelines or safety cables that move with the worker and retract much like a retractable dog leash.

Safety consultants like Vince Gallagher of Safety Research, Inc., addressed the availability of safety platforms to control fall hazards, such as “scissor lifts, telescoping and articulating boom lifts, and a wide variety of personnel lifts and rolling scaffolds”.

OSHA Requires Site-Specific Interim Safety Plan

In the end, OSHA was not convinced after receiving the above commentary and the like that the residential construction industry would be unable to find a safe and feasible means of protecting workers from falls pursuant to 29 CFR 1926.501(b)(13). OSHA concluded the feasibility limitations would be rather minimal and could be adequately addressed by the exception of requiring a site-specific safety plan.

As a result of its findings, OSHA went back to basics and the interim fall protection standard for residential construction which had been instituted in 1995 was indeed repealed. Effective June 16, 2011, the new policy mandated that employers engaged in residential construction must comply with 29 CFR 1926.501 (b) (13) in full effect. Hence, workers engaged in residential construction six (6) feet or more above lower levels must be protected by conventional fall protection, i.e., PFAS, safety nets, or guardrails, or other approved methods set forth in 1926.501(b).

In the event that an employer can demonstrate that such fall protection is “infeasible” or puts the workers at “greater risk” given the nature of the project, then, and only then, can the employer institute an alternative fall protection plan that complies with 1926.502 (k). The alternative plan must be a written plan and must be site-specific as opposed to a generic “safety first” program.

It is a familiar-sounding protection dating back to pre-1995 when the protections had more “teeth” and meaning, especially for those workers who must work at heightened elevations. Yet in reality, builders were placed on notice even back in the mid-90s that this interim, relaxed standard was just that, temporary, and while some may contend that builders received some unexpected and unwelcome news from OSHA when they announced that the interim standard would be repealed, the hard fast truth is that “temporary” did not come soon enough for those who died or were severely injured on the job site due to lack of fall protection measures.

The basic fall protection guideline now in effect will certainly assist in eliminating and/or reducing the possibility of falls on the work site and the accompanying catastrophic injury or death.

Practical Effect and Implications

Builders and employers in residential construction are required to follow the more stringent fall protection requirements of 29 CFR 1926.501(b) (13). Fall protection such as PFAS and passive fall protection such as guardrails or nets must be used when workers are subjected to a fall hazard at or above six (6) feet in height.

In the event an employer determines that conventional fall protection is not feasible or presents a greater danger to the worker, then the builder/employer must comply with the requirements for the alternate site specific plan in accordance with 1926.502(k). General contractors and builders would be well advised to ensure that they enforce all fall protection measures for the workers on site or make sure that the workers are provided with a copy of the contractor’s site-specific safety plan in the event that the compliance under 29 CFR 1926501(b)(13) is warranted.

The failure of a homebuilder or employer to comply with the new, more strict standard not only will result in enforcement penalties and fines being levied, but also will expose the builder/employer to liability in the event that injury or death results. The failure to comply with the stricter fall protection standard will most certainly be used as evidence showing that the builder/employer failed to comply with even the minimum safety standards as required by OSHA. Because the employers in most foreseeable situations will be unable to justify the failure of requiring fall protection for their workers, they will either have to make sure that a site-specific safety plan is in full effect or they will be required to defend the lack of a site-specific safety plan which complies with 1926.502(k). Either way, this will clearly raise the bar as to the standard of care in construction safety cases and hopefully contribute towards a reduction of needless catastrophic injury and death in the residential construction industry due to falls from elevation.

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