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Interpreting OSHA's Fall Protection Rule

Friday, May 25, 2018

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By Harry Dietz, National Roofing Contractors Association

 

In my area of responsibility for the National Roofing Contractors Association, fall protection issues generally involve Subpart M of the Occupational Safety and Health Administration’s construction regulations found in 29 CFR §1926. However, contractors who apply coatings where exposures to unprotected roof edges are present may also be affected by an OSHA regulation that went into effect in January 2017 that has not seemed to get the attention one would expect from such a significant rule.

The rule is a revision of OSHA’s general industry rule in Subpart D of 29 CFR §1910 developed to reduce slips, trips and falls on walking and working surfaces applicable to all general industry workplaces. It contains some concepts with regard to worker safety in fall hazards, along with a fall protection system standard that has an established rule for roofing work. However, the key challenge with the rule is determining the nature of the scope of its application based on the meaning of “construction, alteration or repair” work, as the term is used in OSHA’s construction regulations, and the meaning of “maintenance activities,” used in the general industry rule.

 

BACKGROUND

The general industry regulations relating to fall protection on walking and working surfaces were adopted in 1971 and have not been revised since adoption. The original rule generally limited fall protection system options to the use of guardrails at fall hazards of 4 feet or greater. Under the new rules, the fall protection system options in general industry more closely mirror those that have been applicable to the construction industry since 1994, except for the retention of the 4-foot threshold as the trigger height versus the construction height threshold of 6 feet.

Photos courtesy of Acrymax Technologies Inc. unless otherwise noted

Fall protection issues generally involve Subpart M of the Occupational Safety and Health Administration’s construction regulations found in 29 CFR §1926. However, contractors who apply coatings where exposures to unprotected roof edges are present may also be affected by an OSHA regulation that went into effect in January 2017 that has not seemed to get the attention one would expect from such a significant rule.

Conventional fall protection systems specified under the construction industry rules are now specifically set out and available as general industry options—guardrails, safety nets and personal fall arrest systems—with added provisions for the use of travel restraint and positioning systems.

Most significantly, in certain instances on low-slope roofs (4:12 slope or less), a general industry employer may protect workers by establishing a designated area—a distinct portion of a walking or working surface delineated by a warning line in which employees may perform work without additional fall protection. This new option is clearly based on the warning line system available for roofing work on low-slope roofs that has been part of the construction rules for many years.

A key benefit promoted by OSHA under the new rules is the flexibility offered to employers to select the fall protection system the employer decides is the most appropriate for the fall hazard involved. However, this new rule contains specific provisions based on distances from the roof edge that clearly offer less worker protection than the established warning line system in roofing work. Some of those specifics are discussed below. 

The scope of the new rules is critical for a number of entities. OSHA was given authority under the Occupational Safety and Health Act of 1970 to develop and enforce regulations covering various industries—construction, maritime and general industry, as examples. The general industry rules apply broadly to employers in manufacturing, warehousing, retail and industrial workplaces—the applicability of the rules determined not by an agency definition of “general industry” but more by the work that remains after defining the scope of the other named industries. Application of the maritime rules for ship building and repair is clearly spelled out and “construction work” is less clearly defined as “work for construction, alteration, and/or repair, including painting and decorating.” OSHA has historically considered “maintenance activities” to be covered under the general industry rules.

A 2003 OSHA letter of interpretation relied on a definition in the Davis-Bacon Act in struggling to distinguish repair work from maintenance activities by citing that law’s equally vague definition of construction work: “In essence, 29 CFR 5.2(i) defines construction work as “generally includ[ing] construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work..."

A key benefit promoted by OSHA under the new rules is the flexibility offered to employers to select the fall protection system the employer decides is the most appropriate for the fall hazard involved. However, this new rule contains specific provisions based on distances from the roof edge that clearly offer less worker protection than the established warning line system in roofing work.

In the LOI, OSHA explains that maintenance means “keeping equipment working in its existing state, i.e., preventing its failure or decline.” Regularly scheduled work to maintain the original condition of the component suggests maintenance activity, according to OSHA. But the scale of a project and its complexity could tend to indicate a construction characterization if the scale is large or the complexity great. Complexity is assessed based on the steps involved in accomplishing the task and the tools and equipment needed to perform the work.

Whether the workers performing the tasks are employed by an outside contractor, or in-house employees of the building or property owner is not a factor with respect to which rules apply according to OSHA. The significance of these distinctions must be viewed with respect to the specific work a contractor may be performing to determine whether general industry or construction fall protection options are appropriate for the work. In many instances, an effective argument could be made that work involving the application of coatings falls into the maintenance activities category and that is why the “maintenance” versus “repair” distinction should be critical to coating contractors.

 

FALL PROTECTION SYSTEMS

The new rule states an employer must provide fall protection for any employee on a walking or working surface with an unprotected side or edge that is 4 feet or more above a lower level using one or more of the following: guardrails, safety nets, PFAs, travel restraint systems or positioning systems.

Specifically, with regard to low-slope roofs, one of the conventional fall protection systems listed must be used if workers are less than 6 feet from the roof edge. When work is at least 6 feet or a greater distance from the roof edge, one of those same systems must be used or the employer may implement a designated area but only if the work is “both infrequent and temporary.” A designated area is part of the walking or working surface delineated by a warning line in which employees may perform work without additional fall protection. The warning line of the designated area must be visible from a distance of 25 feet away and from anywhere within the designated area. Height, strength and support requirements from the warning line rules in construction also apply to general industry use as do the distances from the edge for warning line placement when mechanical equipment is used: 6 feet from the edge parallel to equipment travel, 10 feet from the edge perpendicular to equipment travel.

The new rule states an employer must provide fall protection for any employee on a walking or working surface with an unprotected side or edge that is 4 feet or more above a lower level using one or more of the following: guardrails, safety nets, PFAs, travel restraint systems or positioning systems.

Importantly, when work that is both infrequent and temporary is performed 15 feet or greater distance from the roof edge, no fall protection is required provided the employer implements and enforces a work rule prohibiting employees from going within 15 feet of the roof edge unless they use one of the fall protection systems. So, at distances of 6 feet or greater from the roof edge, if the work is not both infrequent and temporary, the designated area option cannot be used.

The new general industry rule also contains a provision similar to one found in the construction rules for workers inspecting, investigating or assessing the work to be performed or the workplace conditions prior to the start of work or after all work has been completed. Those workers are not required to have fall protection unless fall protection systems or equipment have been installed and are available for worker use. This is an important provision most likely to be applied to building engineers and maintenance personnel who previously had never been covered by such an exception.

For OSHA citation purposes, where issues arise in this area historically relates to what exactly a compliance officer might consider to be “work.” So that use of a tape measure, moisture meter or infrared camera might be considered an inspection tool but use of a caulking gun, brush and roller likely moves more clearly into the “work” category.

 

CONCLUSION

Although many of the new general industry fall protection provisions appear similar to those of the construction regulations, construction contractors must continue to rely on the OSHA rules specific to construction with respect to fall hazards and control methods. Specifically, absent further direction from the agency as to what precisely might constitute maintenance activity versus repair, contractors should be particularly wary in attempting to use the designated area options under the new rule for work that could be characterized as construction or repair.

Photo courtesy of Tremco Roofing and Building Maintenance

For OSHA citation purposes, where issues arise in this area historically relates to what exactly a compliance officer might consider to be “work.” So that use of a tape measure, moisture meter or infrared camera might be considered an inspection tool but use of a caulking gun, brush and roller likely moves more clearly into the “work” category.

That is true even if the activity clearly meets the accompanying regulatory requirement of both temporary and infrequent. In fact, the position of NRCA for all work to be performed on low-sloped roofs is roofing contractors should rely on conventional fall protection or the warning line and/or safety monitoring systems (for the narrower category of roofing work as OSHA defines it) detailed in the construction regulations to ensure the greatest safety of their workers.

Safety often can be a casualty when new regulations are issued that lack clarity and cause confusion as to the work operations to which they apply and the precise nature of the worker protection to be implemented. Established conventional fall protection systems along with the warning line and safety monitoring systems provide trained roofing workers with familiarity, ease of setup and use along with dependability in delivering a safe work area when properly implemented.

Use of the conventional fall protection systems described in the recent OSHA general industry rule is likely a safer work practice for a wide range of non-roofing contractors and employers despite the added provisions for infrequent and temporary work on low-slope roofs.

 

ABOUT THE AUTHOR

Harry Dietz is the National Roofing Contractors Association’s director of risk management and has been with NRCA since September of 2002. He is a graduate of DePaul University and John Marshall Law School in Chicago. Dietz grew up in the roofing business—his grandfather started Dietz Roofing Company in Chicago in the early 1920s, and his family operated the business until the 1970s. At NRCA, Dietz’s responsibilities include staff liaison to the Health and Safety committee and updating and developing content for NRCA’s Safety Manual and other safety products. He is a member of the American Society of Safety Engineers, American National Standards Institute’s A-10 Construction Standards Committee, ASTM Skylight Human Impact Workgroup, ISO 45001 Technical Advisory Group and regularly writes for Professional Roofing magazine. Dietz is an authorized trainer for the 10- and 30-hour OSHA construction safety classes and also teaches NRCA’s fall protection class, CERTA torching safety and foremen training classes. 

   

Tagged categories: Fall protection; National Roofing Contractors Association (NRCA); OSHA

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