OSHA Law Blog : Occupational Safety Lawyer & Attorney : Jackson Lewis Law Firm : Health, OSHA Compliance

An OSHA compliance directive requiring contractors performing residential construction comply with the residential fall protection standard will take effect as scheduled on June 16, 2011. The Standard (29 C.F.R. § 1926.501(b)(13), Duty to Have Fall Protection) generally requires that guardrails, safety nets or personal fall arrest systems be used on residential jobsites that are more than six feet off the ground.

Adopted in 1994, the Standard requires guardrails, safety nets or personal fall arrest systems in residential construction. It contained the following 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 [certain] requirements….”  The employer bears the “burden of establishing that it is appropriate to implement a fall protection plan which complies with [the Standard] for a particular workplace situation, in lieu of implementing any of those systems.”

In June 1999, OSHA issued Directive STD 03-00-001, instructing OSHA officials not to commence enforcement of the Standard against an employer if the employer used slide guards or other fall-protection systems that were included in the 1999 Directive.  In 2010, however, the Secretary issued Directive STD 03-11-002, rescinding the 1999 Directive and authorizing enforcement of the Standard as written.

In National Roofing Contractors Ass’n v. U.S. Dep’t of Labor, No. 11-1340 (7^th Cir. Apr. 7, 2011), rejecting a challenge seeking to enjoin implementation of the 2010 Directive, the federal appeals court in Chicago ruled the 2010 Directive was an exercise of the DOL’s prosecutorial discretion, rather than an “occupational safety and health standard.”  Therefore, contrary to the plaintiffs’ argument, the 2010 Directive is not subject to judicial review pursuant to 29 U.S.C. § 655(f). Thus, the Court dismissed the plaintiffs’ petition for review and stay of enforcement of the Standard.

Employers take note.  For those that choose one or more “alternate fall protection measures,”  ensure such measures meet or exceed the OSHA's fall protection standard and reflect that in your fall protection programs. Furthermore, be prepared to explain to compliance officers how you came to the decision to implement the alternative measures.

A special thanks to Mei Fung So, who assisted in the preparation of this post.

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OSHA has just released a hazard alert to hair salon owners warning of potential formaldehyde exposure from working with some hair smoothing and straightening products. In a press release announcing the hazard alert, OSHA states:

Federal OSHA has found formaldehyde in the air when stylists used hair smoothing products, some of which do not have formaldehyde listed on their labels or in material safety data sheets as required by law. During one investigation, the agency's air tests showed formaldehyde at levels greater than OSHA's limits for a salon, even though the product tested was labeled as formaldehyde-free.

OSHA has a health standard that regulates formaldehyde exposure in the workplace. OSHA recommends that hair salons first use products that do not contain formaldehyde. But, OSHA states that “if a salon owner decides to continue using a formaldehyde-containing hair smoothing product, then he or she must follow OSHA's formaldehyde standard,” including requirements for air monitoring, installing ventilation, and providing PPE, depending upon the extent of formaldehyde exposure.

This is not the first alert issued by OSHA to a specific industry. In recent months, OSHA has publicly put grain handling and retail shopping employers on notice of potential safety and health hazards in those industries. Targeting industries through hazard alert letters, letters of interpretation, Federal Register notices, or other means, may make it easier for OSHA to enforce standards against employers in the industries targeted, as they help to establish employer notice of hazards and feasible means of abatement. Employers in targeted industries need to be particularly aware of safety and health hazards and take steps to ensure they are fully compliant with OSHA rules. In the case of hair salons, OSHA gives an even clearer warning, stating that it currently has a number of ongoing investigations at salons and some citations “have been issued.”

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We thought you would be interested in the following article highlighting the Top Ten OSHA Developments Affecting Employers published this month on the Association of Corporate Counsel website.

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