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

OSHA has recently announced two new “initiatives” aimed at improving compliance in traditional "summer-time" areas of concern for the agency:  heat illness and falls.

Heat Illness

Since 2009, OSHA has placed a priority on the prevention of heat illness, especially in the hot summer months.  The most recent campaign is intended to raise the awareness among workers and employers about the hazards of working outdoors in hot weather by creating a webpage devoted exclusively to work-related heat illness. While OSHA does not have a standard dealing directly with heat stress, OSHA could potentially utilize the General Duty Clause of the Occupational Safety and Health Act of 1970 to cite employers for failing to take adequate steps to protect employees from heat illness. Employers should review their policies and practices to ensure that they have plans in place to deal with heat stress at their worksites.

Preventing Falls in Construction

Similarly, OSHA recently launched a webpage devoted to preventing falls in the construction industry.  OSHA provides educational and other materials to employers on ways to prevent falls in construction, train employees, and plan jobs safely. Fall hazards are also a major focus of enforcement in the construction industry. It is incumbent upon construction employers to ensure full compliance with OSHA’s standards related to fall protection.

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OSHA has announced that it will give employers in residential construction an additional three months to come into compliance with its new fall protection directive.  OSHA published the new directive on December 16, 2010 and originally gave employers until June 16, 2011 to ensure their fall protection practices were compliant.  The three month extension, according to OSHA Assistant Secretary Michaels, will give employers "the additional time and flexibility they need to alter their work practices in accordance with the requirements of the new directive."

The crux of the new directive is OSHA's revised position regarding the use of alternative fall protection measures when conventional fall protection in residential construction is deemed to be infeasible or would create a greater hazard.  Until the new directive was issued, employers in residential construction could utilize certain specified alternative procedures instead of conventional fall protection, without a prior showing of infeasibility or greater hazard and without developing a written, site-specific fall protection plan.  The latter requirements are generally mandated by OSHA's construction fall protection standard at 29 CFR 1926.501(b).

The new directive, however, changes this previous enforcement position, requiring residential construction employers to demonstrate that conventional fall protection on a particular job is infeasible or presents a greater hazard before utilizing alternative fall protection measures.  Furthermore, residential construction employers must develop a written, site-specific fall protection plan when utilizing these alternative methods.  According to the directive, "[a] written plan developed for repetitive use for a particular style/model home will be considered site-specific with respect to a particular site only if it fully addresses all issues related to fall protection at that site."

Notwithstanding the three month extension, residential construction employers should be actively examining their fall protection strategies and methods to ensure they are compliant with the new directive.

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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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