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Fed OSHA Rejects AZ Fall Guidelines

Tuesday, February 10, 2015

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As expected, federal safety authorities have rejected Arizona’s tailor-made regulation for residential fall protection, saying the statute falls short of federal standards.

The decision by the Occupational Safety and Health Administration, published Friday (Feb. 6) in the Federal Register, means that Arizona employers must comply with OSHA's standard for construction fall protection. The change took effect Saturday (Feb. 7).

The fall-protection dispute jeopardizes the existence of Arizona's entire State OSHA Plan, as well as up to $3 million in federal enforcement and consultation funds, but federal OSHA said it would defer a decision on the state plan pending the expected state appeal of the fall-protection issue.

Roof scaffolding
OSHA

According to OSHA, the Arizona residential fall protection plan does not offer enough safeguards for workers at six to 15 feet up, and even higher.

Federal OSHA has repeatedly warned the Industrial Commission of Arizona (ICA) that the "Arizona-specific Residential Fall Protection plan" approved March 27, 2012, was "less effective" than federal guidelines in effect since 1994 .Indeed, OSHA refers to the Arizona rules as a "statute" rather than a "standard."

State Requirements

States that operate their own OSHA plans must enforce standards that are "at least as effective as" those set by federal OSHA. Arizona contends that its program "is, and has always been, at least as effective as the federal program."

Federal OSHA sent its objections to the state in December 2012. Numerous meetings throughout 2013 between state and federal officials produced no agreement.

Finally, in a letter March 19, 2014, OSHA Administrator David Michaels warned the state that the federal agency would "initiate proceedings to reject your proposed State Initiated Plan Change" and reconsider the plan's overall status unless the state revised the fall-protection law.

"Unless satisfactorily resolved, these proceedings may involve OSHA's resumption of federal coverage of construction work," the letter said.

Levels of Protection

Michaels' letter detailed several areas in which the Arizona plan fell short of federal OSHA requirements.

Fall protection
OSHA

"OSHA is also aware of Arizona cases where workers fell and were saved from severe injury by following federal OSHA residential fall protection requirements," said Administrator David Michaels.

"[M]ost important," Michaels wrote, is that the Arizona plan "requires very limited, if any fall protection for employees working between 6 and 15 feet, whereas OSHA's standard for construction fall protection requires use of conventional fall protection (fall arrest systems, nets or guardrails) at a height of 6 feet."

Arizona's statute requires only a fall protection plan that "reduces or eliminates fall hazards" for workers at six to 15 feet up.

In addition, OSHA requires that fall protection plans be site-specific, whereas Arizona allows employers to develop a single plan covering all construction operations for work performed below 15 feet.

In April 2014, Arizona modified its bill slightly but maintained the 15-foot trigger height for conventional fall protection and declined to mandate site-specific protection. The bill requires only a "plan," not conventional fall protection, above six feet.

Federal OSHA says Arizona's statute "contains several exceptions to the general requirement ... that will result in many circumstances in which conventional fall protection is not required. ..."

Fans and Foes

Federal OSHA received 10 comments on its threat to reject the statute. The federal position was backed by the American Society of Safety Engineers and the National Safety Council.

Dr. David Michaels Gov. Jan Brewer
OSHA (left); Gage Skidmore; Wikimedia Commons

OSHA's administrator, Dr. David Michaels, says that the Arizona statute, signed by then-Gov. Jan Brewer, is too lenient and has too many exceptions.

Opposed, in addition to Arizona OSHA, were:

  • Home Builders Association of Central Arizona (HBACA);
  • National Association of Home Builders (NAHB);
  • Subcontractors Association of Arizona (ASA);
  • Arizona State Senate;
  • Greater Phoenix Chamber of Commerce;
  • Safirst Corporation; and
  • the Grand Canyon State Electric Cooperative Association.

In general, the opponents contended that the requirement for a written protection plan ensured sufficient protection. The NAHB also repeated its longstanding requirest for OSHA to reopen rulemaking on fall protection.

Workers at Risk

Michaels' 2014 letter noted that falls are the leading cause of death in the construction industry and that Arizona has recorded 11 fatal falls during residential construction since 2003.

In the summer of 2013 alone, Michaels said, federal OSHA was notified of two severe falls by workers who were not provided with fall protection in the six-to-15-foot range.

Floor truss
OSHA

OSHA also expressed concern about state provisions for worker protections around joists, rafters and roof trusses.

Conversely, Michaels said, "OSHA is also aware of Arizona cases where workers fell and were saved from severe injury by following federal OSHA residential fall protection requirements."

For now, Arizona says it will offer free classes to help contractors comply with the federal standard.

Resuming Enforcement

Arizona's change on fall protection followed OSHA's announcement in December 2010 that it would resume enforcement of requirements for residential roofing that had been suspended in 1995.

Interim rules had been in effect while federal OSHA considered allowing employers to offer "specified alternative procedures" instead of conventional fall protection. OSHA noted that the interim rules would not be permanent, and it reverted to the permanent requirements in 2010.

   

Tagged categories: Enforcement; Fall protection; Fatalities; Health and safety; OSHA; Regulations; Residential Construction; Workers

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