Johnson & Bell, Ltd. Construction Law Alert

New Direction for Fall Protection Rules in Residential Construction
By Sean J. Hardy

On December 22, 2010 the U.S. Department of Labor’s Occupational Safety and Health Administration announced a new directive that impacts the fall protection rules applicable to residential construction. Since 1995 residential builders and roofers were often allowed to bypass conventional fall protection in favor of specified alternative methods of fall protection.  Although those alternative methods may still be available where conventional fall protection is not feasible in residential environments, OSHA’s intent is to require conventional fall protection in most residential construction.

On December 22, 2010 the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced a new directive that impacts the fall protection rules applicable to residential construction. Since 1995 residential builders and roofers were often allowed to bypass conventional fall protection in favor of specified alternative methods of fall protection.  Although those alternative methods may still be available where conventional fall protection is not feasible in residential environments, OSHA’s intent is to require conventional fall protection in most residential construction.

The effective date of the new requirements is June 16, 2011.  OSHA will begin enforcement on that date and employers utilizing alternative fall protection found in the rescinded directive will be subject to OSHA citations if they fail to comply with the standards of 29 CFR 1926.501(b)(13).

According to Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels, fatalities from falls are the number one cause of workplace deaths in construction.  “We cannot tolerate workers getting killed in residential construction when effective means are readily available to prevent those deaths.  Almost every week, we see a worker killed from falling off a residential roof.  We can stop these fatalities, and we must,” he said.

According to data from the Department of Bureau of Labor Statistics, an average of 40 workers are killed each year as a result of falls from residential roofs. 

The rescinding of the old directive was supported by the National Association of Home Builders, the AFL-CIO, and the Occupational Safety and Health State Plan Association.

The National Association of Home Builders (NAHB) believes the change is necessary because falls continue to be the leading cause of deaths and injuries in the home building industry, and because it believes there is too much confusion in the industry as to which fall protection standards must be complied with and what methods must be used to prevent fall-related accidents.  NAHB believes that the old directive created confusion and uncertainty in the residential construction industry.

Additionally, the Department of Labor contends that the old directive was never intended to be a permanent resolution and that conventional fall protection is safe and feasible for the vast majority of residential construction activities.  Also, the fall protection requirements established in Subpart M of 29 CFR 1926.501(b)(13) were originally intended to apply to residential construction.

Section 1926.501(b)(13) states that workers engaged in residential construction activities 6 feet (1.8 meters) or more above lower levels shall be protected by guardrail systems, safety net systems, or personal fall arrest systems, or by alternative fall protection measures allowed under 1926.501(b) for particular types of work.  For instance, 1926.501(b)(2)ii provides that controlled access zones and control lines can be used for some leading edge applications, 1926.501(b)4(i) and (ii) allows covers to be used to prevent falls through holes, and 1926.501(b)(7)(i) and (ii) allows barricades, fences, and covers to be used to prevent falls into excavations.

A combination of a warning line system and safety monitoring system is allowed under 1926.501(b)(10) for roofing work on low-sloped (4:12 or less) roofs.  On roofs 50 feet or less in width the use of a safety monitoring system without a warning line system is permitted.

If the employer can demonstrate that it is not feasible or creates a greater hazard to use the required conventional fall protection systems, the employer must instead develop and implement a written site specific fall protection plan in accordance with 29 CFR 1926.502(k).  “Economic infeasibility” is not considered a basis for failing to provide conventional fall protection.  Also, there is a presumption that it is feasible and will not create a greater hazard to implement at least one of the systems listed.  OSHA expects that the fall protection methods listed in 1926.501(b)(13) can be used effectively for the vast majority of residential construction activities.

A fall protection plan acceptable under 1926.502(k) must meet a long list of requirements.  Among other requirements, the fall protection plan must be site specific, be prepared by a qualified person, be maintained on site, be up to date, be implemented under the supervision of a competent person, document the reasons why conventional fall protection systems are infeasible or create a greater hazard, and include a written discussion of the alternative work practices to be used that will eliminate or reduce the possibility of a fall.

In order to be considered residential construction under the rules two elements must be met.  First, the end-use of the structure being built must be as a home.  Second, the structure being built must be constructed using traditional wood frame construction materials and methods.  However, the limited use of steel I-beams to support wood framing, use of cold-formed metal studs, and homes with masonry brick or block exterior walls, are all considered to be residential construction. 

The rules also require that workers exposed to fall hazards be trained to recognize potential fall hazards and in the procedures to be followed to minimize those hazards.  The rules found at Section 1926.503 require that workers be trained to erect, maintain, disassemble and inspect the fall protection systems to be used, and in how to use and operate the fall protection systems.

The U. S. Department of Labor and OSHA recognize that the new directive will implement significant changes in the fall protection policy applicable to residential construction.  Residential fall protection compliance assistance and guidance materials may be found at www.osha.gov/doc/residential fall protection.html.  Fall protection standards for states with OSHA-approved state plans may be found at www.osha.gov/dcsp/osp/statestandards.html.

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