Revised OSHA Fall Protection Standard Imposes New Obligations on Employers

Authors: Mark N. Duvall, Jayni A. Lanham, Jessica L. Kyle
Beveridge & Diamond, P.C., November 30, 2016

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OSHA recently published a long-anticipated final rule amending its existing Walking-Working Surfaces and Personal Protective Equipment (PPE) standards.[1] The rule, which applies to general industry, seeks to improve worker protections from workplace slips, trips, falls, and other injuries or deaths relating to walking-working surface hazards, and places special emphasis on preventing worker falls to lower levels. To that end, the rule: (1) revises the general industry Walking-Working Surfaces standard by including updated and new provisions for fixed ladders, rope descent systems, and fall protection systems and criteria; and (2) adds new requirements to the general industry PPE standard that address the design, performance, and use of personal fall protection systems. The rule becomes effective on January 17, 2017, although some provisions have extended compliance schedules as detailed below.

The final rule has a wide scope of impact, encompassing all general industry walking-working surfaces such as floors, stairways, ladders, dockboards, roofs, scaffolds, and elevated work surfaces and walkways. All employers in general industry will be affected.

Significantly, the final rule has several features that may ease compliance. First, it brings many fall protection requirements for general industry into alignment with existing construction industry standards, which will prove useful to employers operating in both areas. Second, because a key motivation for the rule was to keep pace with technological advancement and national consensus standards, employers who have adopted those standards may be largely compliant already. Third, OSHA’s rule frequently uses option-enhancing performance-based language, as is evident from the range of fall protection systems from which employers may choose.

Background

OSHA’s final rule is the culmination of a lengthy effort to revise and update the agency’s 1971 general industry standards on Walking-Working Surfaces and PPE.[2] In 1973, OSHA published a proposed rule to revise the Walking-Working Surfaces standard.[3] However, it withdrew the proposal as outdated three years later.[4] OSHA subsequently spent over a decade collecting information relevant to fall risks and prevention, including national consensus standards from the American National Standards Institute (ANSI), American Society of Testing and Materials (ASTM), and the American Society of Mechanical Engineers (ASME).

In 1990, OSHA published a pair of complementary proposed rules.[5] The first of these would have revised Subpart D of OSHA’s existing general industry standards and created an employer duty to provide fall protection. The second would have revised Subpart I and outlined criteria for personal fall protection systems. Despite a process of comments and informal public hearings on the companion proposals, OSHA did not finalize either rule.[6] Instead, in 2003, the agency published a notice reopening the record on the 1990 proposed rulemakings.[7] Noting significant advances in technology and personal fall protection systems, OSHA determined a need for a new proposed rule.

Several years later, in May 2010, OSHA published a consolidated proposed rule updating and revising both Subparts D and I.[8] OSHA accepted public comments during a 90-day period and held four days of public hearings.[9] OSHA published its final rule on November 18, 2016.[10]

Key Provisions of OSHA’s Final Rule

Fall Protection

Fall protection measures prevent a worker’s fall from an elevation or mitigate the effect of a fall. An employer’s obligation to provide fall protection is triggered when employees work at least four feet above a lower level. The final rule sets forth requirements for the following fall protection options. It requires employers to select one or more of those options, depending on the particular situation or activity:

Guardrail system
Safety net system
Personal fall arrest system (body belts now prohibited)
Positioning system
Travel restraint system
Ladder safety system (this does not include cages or wells)
Handrails
Designated areas (only permitted on low-slope roofs)

Specific situations for which the rule establishes fall protection options and other requirements include hoist areas, runways, wall openings, repair pits, and stairways.

Ladder Safety

The final rule sets out general ladder safety requirements applicable to fixed ladders, portable ladders, and mobile ladder stands and platforms. Ladders used in emergency operations and ladders “designed into [or] an integral part of” machines or equipment are exempted.[11]

Per the general requirements, employers must ensure that:

Ladders are capable of supporting at least the maximum intended load, i.e., the total weight and force of anticipated employees and equipment or other materials
Mobile ladder stands and platforms are capable of supporting four times the maximum intended load
Ladders are inspected before initial use during a work shift, and as necessary, to identify visible defects that could cause worker injuries

Special requirements for fixed ladders include:

A phase-in of the requirement of ladder safety or personal fall arrest systems for fixed ladders extending beyond 24 feet, and corresponding phase-out of the use of cages or wells for ladder fall protection, with the shift complete in 20 years
A phase-out of the 1993 exception for outdoor advertising industry that permitted “qualified climbers” to forego fall protection

Special requirements for portable ladders include:

Slip-resistant rungs and steps
Secure and stable use, including on slippery surfaces
Ladders may not be placed on unstable bases to add height or fastened together when not designed for such use

Rope Descent Systems

The final rule permits employer use of RDSs, which are commonly utilized to perform work like window-washing multi-story buildings. The rule codifies OSHA’s 1991 RDS memorandum,[12] which addresses equipment strength, rope padding, and stabilization requirements.

The rule also adds new requirements, including:

A 300-foot height limit for employer use of RDSs
Prohibition of RDS use in hazardous weather conditions
Written affirmation by building owners, prior to employer use of RDSs, that permanent anchorages have been tested, certified, and maintained as capable of supporting 5,000 pounds for each worker attached

Scaffolds

Employers are required to ensure that scaffolds meet existing construction scaffold standards.[13]

Training

Employers must ensure training of workers who use personal fall protection or work in dangerous circumstances including using RDSs and working on loading docks. Workers must be trained by a “qualified person,” and the training must be understandable to employees and cover:

Identification of fall hazards
Proper use of personal fall protection systems and RDSs
Maintenance, inspection, and storage of equipment or systems used for fall protection

Employers must also ensure the retraining of workers when they have reason to believe workers lack the required comprehension and skill.

Implementation Schedule

The final rule will be generally effective and enforceable on January 17, 2017. However, the effective dates of the following provisions will be phased in according to the following schedule:

Fall hazard training and training for workers using equipment covered by the final rule: May 17, 2017
Inspection and certification of permanent anchorages for RDSs: November 20, 2017
Equipping existing fixed ladders over 24 feet with a cage, well, personal fall arrest system, or ladder safety system: November 19, 2018
Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and replacement ladder or ladder sections: November 19, 2018
Replacement of cages and wells with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet: November 18, 2036

Conclusion

In light of the final rule’s incorporation of existing standards and its relative flexibility, OSHA “believes that many employers already are in compliance with many provisions in the final rule.”[14] Notwithstanding the rule’s broad applicability to general industry, employers presently using standards on which OSHA has drawn or fall protection systems within the spectrum of permitted options will find the rule less burdensome.

Note, however, that any violations are now subject to higher penalties.[15] OSHA’s maximum penalty adjustment, which took effect on August 1, 2016, signals a 78% increase in penalty amounts. This change is important because fall protection violations remain among OSHA’s most frequently cited standard violations.

Finally, the timing of OSHA’s rule means that Congress could potentially overturn it under the Congressional Review Act (CRA).[16] The CRA gives the incoming Congress 60 legislative days to pass a joint resolution of disapproval of the rule, which will invalidate the standard if signed by the new president. Should the pending CRA amendment, the Midnight Rules Relief Act, become law, OSHA’s rule could even end up bundled together with a number of other regulations overturned at once.[17] It is worth bearing in mind that OSHA’s rule flouts recent Republican warnings to President Obama that no new final rules should be released in the wake of the election results. Thus, although its substance has generated less controversy than many other rules adopted under the Obama Administration, OSHA’s new rule faces an uncertain trajectory.

Beveridge & Diamond's Occupational Health & Safety Practice works alongside clients’ legal, EHS and technical teams, to help resolve critical enforcement, compliance, and regulatory issues relating to their facilities and operations. For more information, please contact the authors.

[1] 81 Fed. Reg. 82494 (Nov. 18, 2016).

[2] 36 Fed. Reg. 10466 (May 29, 1971).

[3] 38 Fed. Reg. 24300 (Sept. 6, 1973).

[4] 41 Fed. Reg. 17227 (Apr. 23, 1976).

[5] 55 Fed. Reg. 13360 (Apr. 10, 1990); 55 Fed. Reg. 13423 (Apr. 10, 1990).

[6] 55 Fed. Reg. 29224 (Sept. 11, 1990).

[7] 68 Fed. Reg. 23528 (May 2, 2003).

[8] 75 Fed. Reg. 28862 (May 24, 2010).

[9] 75 Fed. Reg. 69369 (Nov. 12, 2010).

[10] 81 Fed. Reg. 82494 (Nov. 18, 2016).

[11] Id.

[12] OSHA, 1991 RDS Memorandum, (Mar. 12, 1991), http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22722.