Fall protection directive upheld in court (4/15)
April 15, 2011
OSHA’s directive requiring fall protection in residential construction – scheduled to go into effect June 16 – has survived a legal challenge by the National Roofing Contractors Association (NRCA). The directive withdrew an earlier one that allowed certain residential construction employers to bypass some fall protection requirements.
The dispute centered on the new rule’s elimination of “slide guards” or roof brackets as an acceptable means of fall protection.
The U.S. Court of Appeals for the Seventh Circuit rejected a petition for judicial review filed by the NRCA and four roofing contractor plaintiffs. The petition argued that OSHA did not follow appropriate rulemaking procedures when it eliminated an option that has been in place for 15 years, that it acted without any evidence to suggest slide guards are not an effective method for fall protection and that it failed to take into account the effect on small businesses the new rules would have.
OSHA argued that the rule is not a new standard and therefore beyond the reach of an appeal.
OSHA Assistant Secretary Dr. David Michaels applauded the court’s decision to uphold the directive. "Fall protection saves lives," said Michaels. "Fatalities from falls are the number one cause of death in construction," added Michaels. "These deaths are preventable, and we must prevent them."
Data from the department's Bureau of Labor Statistics estimates that an average of 40 workers are killed each year as a result of falls from residential roofs
The NRCA, however, pointed to a survey it conducted in 2010 showing 37 falls from roofs when "conventional" fall-protection systems, most typically harnesses with safety lines, were used but only nine falls from roofs when slide guards were used. According to the survey, the nine reports of falls when slide guards were used occurred on 17,855 roofing jobs; the 37 falls when harnesses were used occurred on 14,083 jobs.
"This is a classic case of a bureaucracy believing it knows more about how to provide a safe workplace than do the people in the industry it is trying to protect," says Bill Good, NRCA's executive vice president. "We think it is critically important for employers to be able to decide which method of fall protection affords the best possible solution for any given project, but the new OSHA rules make that incredibly difficult in most cases and impossible in others."
The new directive, Standard 03-11-002, rescinded the Interim Fall Protection Compliance Guidelines for Residential Construction, Standard 03-00-001. Prior to the issuance of this new directive, Standard 03-00-001 allowed employers engaged in certain residential construction activities to use specified alternative methods of fall protection rather than the conventional fall protection required by the residential construction fall protection standard. With the issuance of the new directive, all residential construction employers must comply with 29 Code of Federal Regulations 1926.501(b)(13). Where residential builders can demonstrate that traditional fall protection is not feasible, 29 CFR 1926.501(b)(13) still allows for alternative means of providing protection.