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By Tripp Baltz
Employers fear inconsistent enforcement of an OSHA rule allowing some work to be done without ordinarily required fall protection because key terms are not defined.
The Occupational Safety and Health Administration’s updated fall protection rule, which went into effect Jan. 17, allows certain activities to be done without fall protection systems as long as the work is “temporary and infrequent.” However, the agency has not yet provided guidance on what that means and how it will be enforced, leaving employers uncertain about what is expected of them.
“How will they define what that is? This is going to be one of the hobgoblins of this rule,” Adele L. Abrams, an occupational safety and health attorney from Beltsville, Md., said during a June 22 panel discussion on the rule at the professional development conference and exposition of the American Society of Safety Engineers. “It does open itself up to inconsistent enforcement inspector by inspector.”
Abrams said there will be uncertainty about how to define those terms until the rule is interpreted in a binding declaration by the Occupational Safety and Health Review Commission, “and not just by an administrative law judge.” She said she represents a lot of mechanical and electrical contractors, “and we’re looking to get some interpretative guidance on this.”
Meanwhile, she advised employers to keep track of how long crews engage in an activity that might require the fall protection requirements. The rule, covering an estimated 112 million workers, updates the 45-year-old walking-working surfaces standards (29 C.F.R. 1910 Subpart D) and the personal protective equipment standards (29 C.F.R. 1910 Subpart I) by taking into account changes to safety practices and gear made since 1971.
It includes training requirements that become mandatory in July and in general requires employers to identify slip, trip, and fall hazards and then provide fall protection, ranging from guard rails to tethered harnesses.
The rule attempts to provide some clarity on what is a safe distance to an unprotected roof edge. Previously OSHA has said there is no safe distance.
Under the new regulation, work less than six feet from the roof edge requires conventional means of protection, for example a guardrail or personal fall arrest system. The allowance for temporary and infrequent activity applies to distances from between six feet and 15 feet.
Other elements of the rule are unclear, panelists said. The vagueness of the rule’s 20-year phase-out of the use of cages and wells on ladders as a means of fall protection is so rife that one OSHA area director “was told not to answer any questions about that,” said Thom Kramer of LJB Inc., a structural and safety engineering firm in Miamisburg, Ohio.
Abrams said until the final rule’s standards regarding gate strength requirements are clarified, she advises any employer facing an enforcement action on it to “immediately put it under contest because at worst it should be considered a de minimis violation if you are conforming with” the ASSE ANSI Z359 consensus standard.
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Frequently asked questions on OSHA's Final Rule on Walking-Working Surfaces and Personal Fall Protection Systems is available at https://www.osha.gov/walking-working-surfaces/faq.html.
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