On January 17, 2017, OSHA’s new Walking-Working Surfaces Rule took effect, updating OSHA regulations that have been in place for nearly a half century.  OSHA’s new rule, commonly referred to as the “Slips, Trips and Falls” rule, actually revises and updates two historic OSHA standards — the Walking-Working Surfaces regulations at Subpart D and the Personal Fall Protection regulations at Subpart I of OSHA’s General Industry Standards (29 C.F.R. Part 1910). 

Begun in 1990, it took OSHA all of 27-years – longer than it takes the agency to promulgate its comprehensive health standards.  But just shy of two months to the end of the Obama Administration, the rule was promulgated, and became effective and enforceable three days prior to the Inauguration of Pres. Donald Trump.

The new rule may fall prey to efforts by the Trump Administration to stay and roll back those rules promulgated in the 11^th hour by the Obama Administration — of which this certainly is one — it seems to have avoided the full scale assault by industry legal challenges typical of new OSHA rules. 

The period to file legal challenges to the rule ended two weeks ago, and a survey of court filings indicates that only two parties have filed challenges to the rule, and these challenges are narrowly focused on a few discreet provisions of the rule, relating to the 300-foot limit on the use of rope descents and the restrictions on chimney sweeps who climb carrying their hook ladders.  Thus, even if these challenges are upheld, the bulk of OSHA’s revised Walking Working Surfaces rule will remain secure and in place.

Significant provisions

It is not surprising that the new rule by and large escaped industry legal challenge.  For the most part, it incorporates existing advances in technology and current national consensus standards and/or industry best practices already in place in a wide swath of impacted industries into the regulatory structure.  Further, in particular in the area of personal fall protection, the new rule adds flexibility to the old requirements by expanding allowable methods for compliance.  For instance, the new rule allows employers to rely on fall protection systems rather than relying exclusively on guardrails and physical barriers in many situations.

But the new rule does impose some new requirements it is important to be aware of and understand.  Where personal fall protection systems are used (i.e., personal fall arrest, travel restraint, and positioning systems), the new standard establishes requirements on the use, performance, and maintenance of these systems. 

Also, the final rule prohibits the use of body belts as part of a personal fall arrest system.  This is one example of many where the new standard eases compliance for employers with operations governed by both the general industry as well as construction standards by, in general, aligning the regulatory provisions in these two areas. 

More broadly, the new standard adopts new requirements in the areas of training and inspection, requiring employers to, for instance, inspect walking-working surfaces regularly and as needed, and to correct, repair or guard against hazardous conditions, and to train and retrain (as necessary) all employees who use personal fall protection and work in other specified high hazard situations on fall and equipment hazards, including fall protection systems.

With regard to ladders, the new standard phases in new ladder requirements including a requirement to equip fixed ladders extending over 24-feet with ladder safety or personal fall arrest systems, and prohibits the use of cages and wells as a means of fall protection after the elongated 20-year phase-in deadline.  While the rule grandfathers in cages and wells on existing ladders, it requires during the phase-in period that employers equip new ladders and replacement ladders or ladder sections with ladder safety or personal fall arrest systems.

The compliance deadlines established in the rule include:

• Training workers on fall and equipment hazards — 6 months;
• Inspection and certification of permanent building anchorages — 1 year;
• Installation of fall protection (personal fall arrest systems, ladder safety systems, cages, wells) on existing fixed ladders (over 24 feet) that do not have any fall protection — 2 years;

Source: www.jdsupra.com Written by Eric Conn, Kate McMahon, Conn Maciel Carey LLP