“Here we go again!” a residential contractor recently complained to me, and I couldn’t really disagree with him. On June 16, 2011, The Occupational Safety and Health Administration (OSHA) will be enacting yet another new residential fall protection compliance directive - STD 03-11-001. An STD is a written directive meant to instruct local OSHA Area Compliance officers in how to evaluate and cite a possible violation of an established standard found in 29 Code of Federal Regulations.
In no way does it change either the language or intent of any standard. In particular, this is a new compliance guideline for officers for safety and health to reference while inspecting construction sites where single-family homes and multi-family dwellings are being built. This guideline will eliminate (or cancel) any previous compliance guidelines and require all contractors performing residential construction to comply in full with 29 CFR, Part 1926.501(b)(13), the residential fall protection standard, which, in turn, requires compliance with 1926.502(k), the construction fall protection written program.
Why the change? At the start of this most recent building boom, the residential building community complained to OSHA that they needed more “compliance flexibility” than the Fall Protection Standard (1926.500) permitted. In response, OSHA published a compliance directive (STD 3.1) in 1995. STD 3.1 permitted employers performing certain residential operations to use “alternate procedures” such as slide guards to protect their workers from falling, instead of complying with the standard fall protection procedures stipulated in Subpart M. OSHA made a few changes to STD 3.1 and issued STD 3-0.1A as a temporary fall protection instruction in 1999. It was eventually re-designated as STD 03-00-001.3.
In this period, inspections were lax and enforcement was lenient, with 50 percent to 60 percent penalty reductions common. The existing fall protection compliance directive, which has been followed for almost 13 years, has apparently done little to reduce fall fatality rates or clear up the confusion in the residential construction industry. OSHA obviously felt there was a need for a course change.
Emphasis on Falls From RoofsIn the introductory press release to the advance notice of proposed rulemaking, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, stated: “Fatalities from falls are the number one cause of workplace deaths in construction. We cannot tolerate workers getting killed in residential construction when effective means are readily available to prevent those deaths. Almost every week, we see a worker killed from falling off a residential roof. We can stop these fatalities, and we must.”
According to the Bureau of Labor Statistics, since 1995 fatal falls from heights greater than 6 feet have averaged approximately 33 percent of all construction deaths. There isn’t much doubt that this new directive is primarily intended to prevent fatal falls of the residential roofers, framers and laborers whose unfortunate deaths have been reflected in these statistics. It’s these trades that were specifically noted by those stakeholders with a vested interest in rescinding the old directive. These proponents included the National Association of Home Builders (NAHB), The AFL-CIO, OSHA’s Labor-Management Advisory Board and OSHA’s State Plan Association.
While the construction fall protection standard (Subpart M) itself was not altered, it was NRCA’s concern that rescinding the current standard and replacing it with STD 03-11-001 would “neither enhance overall worker safety nor provide a practical solution to the complex issue of fall protection in the roofing industry.”
Although the entire residential building industry was targeted by this proposed rule, NRCA argued on behalf of its members that most of OSHA’s requirements on many specific safety issues would create undue hardships on the roofing industry specifically, including:
• Consistently exposing roofers to fall hazards for a longer period, making their tasks at height either infeasible or a greater hazard.
• Installation of many fall protection systems at height often constitutes either an unreasonable risk of falling or prolonged exposure to falls.
NRCA argued that many roofing contractors “would choose to provide no fall protection [for their employees] instead of incurring the burden of using conventional fall protection or establishing infeasibility or greater hazard, and writing a compliant fall protection plan.” But in a Secretary of Labor v. State Sheet Metal, a 1982 case, the court ruled as follows: “An employer cannot be excused from [OSHA] noncompliance on the assumption that everyone else will ignore the law.”
Based on enforcement experience and new fall protection technologies, OSHA was eventually convinced that conventional fall arrest systems could be used successfully with commercially available equipment without impeding production schedules, creating greater hazards, increasing the duration of fall hazard exposures, or creating prohibitive equipment costs. Eventually, OSHA did not find the counter-arguments as substantially viable in light of the 5(a)(1) General Duty Clause, which reads: “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serous physical harm to his employees.”
Not every enforcement guideline will change on June 16. Some of the more notable features of the former STD will remain in place, but the enforcement frequency and hazard assessment (probability vs. severity) will certainly carry more weight. The first and foremost carryover item is the infeasibility/greater hazard variance. Employers may still elect one or more “alternate fall protection measures,” but by doing so must meet or exceed the requisite policy requirements listed in 29 CFR 1926.501(b)(13) and the written fall protection plan stipulated in 1926.502(k). What forgiveness in detail was once allowed will be functionally prohibited after June 16.
Key Terms• Residential construction. The term “residential construction” may be considered self-explanatory to most of us, but it has significant implications on inclusions in the STD. It is any building operation in which either: (1) the end use of the structure shall eventually become a single or multiple-family home or dwelling unit; and (2) a structure which is built using traditional wood-frame construction, where materials, methods and procedures employed are “the same as those used for a typical single-family house or townhouse.” Due to similarities in framing methods, the use of cold-formed, light-gauge steel studs is included, as well the “limited” use of structural steel elements, such as a floor I-beam, point-load column, lintel or flitch plate. Although concrete masonry unit and brick masonry-walled structures do not simulate wood-framing methods, the potential fall hazards during construction are similar if floor joists and roof rafters are of wood construction. Therefore, OSHA still considers these masonry dwelling structures to be included in the category. A conventional wood-framed entry foyer built adjoining a commercial structural steel building may also be included. Nursing homes, hotels/motels and similar facilities may also be included. If, in the view of the compliance officer, they have too many steel and concrete components, they will be exempted.
• Designated personnel. The written fall protection plan shall be site-specific, designed by a qualified person and implemented and enforced by a competent person designated by the employer in the Plan. These personnel are notable due to their ability to observe, act and verify, with special emphasis on thorough, on-site documentation. The competent person maintains the additional capability to “take prompt corrective actions” with all of the authority and responsibility of the employer.
• Alternate fall protection methods. These include any safe work practice using practical methods and available materials which either reduce or eliminate the potential of a fall more than 6 feet above a lower level without necessarily complying with OSHA’s conventional fall protection methods. OSHA acknowledges “isolated situations” in residential construction where conventional fall protection methods may either interfere with completion of work or work may reduce the effectiveness of the fall protection method. There are a number of alternative procedures which, under certain conditions, can provide equivalent protection on some roofs, including:
• Slide guards for roofers under specific roof conditions and installation methods.
• Safety monitoring in conjunction with warning lines and controlled access zone for roofers.
• Fall restraint systems with proper training, evaluation and oversight.
In these cases, the employer must prove that the standard fall protection methods are infeasible and create a greater hazard than the alternative - and must prepare a written site-specific fall protection plan. Alternate fall protection methods do not eliminate the employer’s duty to otherwise comply with 29 CFR 1926.501(b)(13) in all other areas of the residential project or building tasks where standard methods are feasible or do not create a greater hazard.
New Fall Protection TechnologiesCommentators who initially or eventually supported and encouraged the cancellation of the former STD and replacement by STD 03-11-002 concluded that the current safe work practices, adequate and improved training programs and availability of practical and affordable fall protection equipment in the marketplace eliminated any arguments for infeasibility or greater hazard in residential construction fall protection. In its advance notice of proposed rulemaking, OSHA mentions many of these technological improvements in fall protection equipment since 1999.
• Personal Fall Arrest Systems (PFAS). The advancements in harness design and arrest technology have dramatically reduced the physical risks once associated with PFAS. A full-body harness with an integral, elastic bungee arrest system virtually eliminates the “slamming effect” of a standard rip-stitch, shock-absorbing harness and significantly reduces the total fall distance from 18-plus feet to 10 feet below the anchor point, eliminating many struck-by hazards. Harness webbing fabrics have advanced to provide more personal adjustability, flexibility and overall comfort. Designs are constantly improving with the advantages of easier donning with vest-designs and webbing support padding. Many lanyard manufacturers offer a tie-back lanyard which, by design, acts as its own beam wrap or anchor strap. There are also pole-mounted devices which enable a worker to remotely attach a cross-arm anchor strap to an overhead structure from 24 feet below. Most PFAS manufacturers have even developed equipment which will both fit and protect workers who weigh more than the ANSI-designated 310-pound limit under specified conditions and anchorages. They also provide harnesses which resist high temperatures and damaging chemicals.
• Self-retracting lifelines. These unique fall protection devices can restrict freefall distances to inches rather than feet, all but eliminating excessive terminal impact force and its associated Harness-Induced Pathology (HIP). Unfortunately early models often had compromising tradeoff features, such as excessive bulk/weight, balky line deployment, and a potential for swing radius during a fall. Today’s much-improved mechanisms do not increase lifeline tension as the length increases. The engagement cam dynamics are more forgiving during abrupt movements. They are less vulnerable to contamination by dirt and debris. Harness-mounted, double-leg retracting lifelines are available today, making traversing roof decks and exchanging anchor points and horizontal/vertical lifeline systems more convenient. Swing radius still remains a concern with these devices, but their improved design features make them more compatible combined with horizontal lifelines.
• Portable anchorage systems. These units range from one-person to three-person fall protection or two-person to four-person fall restraint capabilities on roofs up to 2:12 pitch. Many are counterweighted on mobile roofing carts, but all employ some type of “dagger” which deploys into the roof deck upon receiving lateral forces created by an arrested fall. Easily assembled on the roof from modular components, these four-wheel towable devices come in multiple sizes and designs. There are constant-force post roof and deck anchors which may be assembled with stackable weights on top of a finished roof or floor to achieve the required 5,000-pound resistant strength. There are several manufacturers of horizontal bar anchors which fasten in rough or finished door and window openings. As with most mobile fall protection devices, improper installation and careless maintenance can be a problem, so a competent person must be trained to verify use and maintenance according to the manufacturer’s operating manual.
• Interior frame fall protection nets. Modular net systems, adjustable hardware, adaptable anchorage methods and high-strength, lightweight and adjustable wall bracing systems have made interior safety nets a much more practical fall protection option in residential projects. Once installed on upper floor wall plates, simultaneous with exterior wall scaffolding, joist decking, rafter framing and/or truss installations can begin with fall protection in place. As with all personal safety net systems, caution should be taken that the freefall area into the net is clear of any obstructions a falling worker could potentially strike.
• Roof ladder anchors. The extension ladder with ridge hooks has given “first-man-up” an advantage for accessing the ridge to install fall protection anchors for the crew that follows. Now there is a device that attaches to such ladders to provide rated fall protection anchor points for this individual to temporarily attach his personal fall arrest system.
• Ladder access devices: The portable ladder industry has stressed innovative design and new accessories every year since the mid 1990s and this magazine has featured many of them in the past. One manufacturer now offers a professional extension ladder with pre-installed, extendable feet and a bubble level in the lower rung for leveling the ladder. Combined with an easily attached ladder stabilizer and step-through ladder handrail extensions, the modern ladder provides the residential contractor with an easy and stable means to safely access a floor or roof deck that simply wasn’t available a decade ago.
ConclusionIn effect, the regulatory train has left the station. It was OSHA’s final opinion that standard guardrail, restraint and personal fall arrest systems can be used both safely and effectively in residential construction, including any potential roofing operations. Many arguments have and will be made against using conventional fall protection practices in residential construction and roofing. OSHA was developed by Congress to protect us from ourselves, in spite of ourselves. Those of us “from the field” realize residential fall protection is not an issue that has a particularly clear and decisive solution “in the field.”
But a violation still remains a violation. The residential contractor who does not provide any of the standard fall protection measures noted in 1926.502(b)(13), then must: (1) clearly and physically demonstrate the infeasibility of these measures or existence of a greater hazard created on a particular portion of his site; and (2) produce a comprehensive, site-specific, qualified-person-written fall protection program which includes implementation details for alternate measures for those portions of his site and competent person oversight for training and enforcement. If, after June 16, 2011, these two minimum qualifications are not clearly met, the contractor may receive a grouped citation for 1926.501(b)(13) and 1926.502(k), for which penalty reductions may be decidedly minimal or nonexistent. OSHA has provided copies of the new compliance directive for review, as well as training and compliance assistance materials to residential contractors and roofers on its website (www.osha.gov/doc/residential fall protection.html).
Within the ensuing months, it’s expected that clarifications will be disseminated from the Department of Labor down to regional and local OSHA offices. As with every new compliance directive or regulation, we can also expect to see a cascade of new Letters of Interpretation and Instruction Memoranda issued over the next year or two, as a myriad of site-specific, trade-specific and task-specific inquiries are evaluated. The old adage “The devil’s in the details” could not be any truer than in this case.
A Brief History of Residential Fall Protection Regulations1971: OSHA promulgates the first construction industry fall protection standard, Subpart M – Floor and Wall Openings.
1975: NRCA and OSHA debate the fall protection issue and determine that a “floor” cannot be considered a “roof.”
1980: OSHA publishes final roofing fall protection rule which introduced warning lines and safety monitor systems as practical fall protection methods.
1994: OSHA revises the Construction Fall Protection standard (Subpart M) to include 1926.501(b)(13) “Residential Construction” to require the employer protect employees at or beyond 6 feet (previously 16 feet) above a lower level to be protected by a guardrail, safety net or personal fall arrest system. OSHA presumes these three protective measures are feasible and do not creating a greater hazard. Therefore, the employer has the entire burden to prove any infeasibility or greater hazard before implementing any alternate protection method in a site-specific fall protection plan complying with 1926.502(k). Roofers were exempted from this alternate protection method.
May 1995: Lobbyists for the residential construction industry and NRCA ask for “more compliance flexibility” for their members than currently offered in 1926.501(b)(13). Most argue it would cause “more harm than good.”
December 1995: OSHA issues STD 3.1, an interim compliance policy allowing residential contractors to use “specified alternative procedures” in specific “residential construction activities” instead of conventional fall protection methods, without having to prove infeasibility or greater hazard qualifications.
January 1, 1998: A significant revision of OSHA’s 1926.500 Fall Protection (Subpart M) is made effective, creating many changes in the personal fall arrest standards, including the prohibition of body belts and straight rope lanyards for personal fall arrest systems.
November 24, 1998: The Roofing Industry Partnership Program for Safety and Health is established between OSHA, NRCA, the Roofer’s Union, construction management and other stakeholders to work jointly to eliminate roofing injures and deaths while helping to develop safety regulations that are both practical and effective.
June 18, 1999: OSHA issues STD 3-0.1A as a temporary fall protection instruction with some changes to the original enforcement guidelines, including the scope of construction activities covered. STD 3-0.1A was eventually re-designated as STD 03-00-001.3, with the intention of soliciting additional public commentary. It was never intended to remain a permanent solution to residential fall fatalities. However, this Interim Fall Protection Compliance Directive for Residential Construction was and still remains the predominant, plain-language guideline document used by residential contractors until June 16, 2011. Some states either did not officially adopt this STD in their state policy or have since rescinded it. They chose a more restrictive policy of fully compliance to 1926.501(b)(13) without any alternative safe work practices. There are a number of Letters of Interpretation and memoranda written in the last 11 years regarding STD 03-00-001. These may be referenced by searching on www.osha.gov to clarify specific applications of this compliance guideline.
September 2000: OSHA’s Advisory Committee on Construction Safety and Health (ACCSH) votes 6 to 2 in favor of recommending OSHA rescind STD 03-00-001.3.
December 16, 2010: OSHA publishes an Advanced Notice of Proposed Rulemaking (ANPR) enacting STD 03-11-02 Compliance Guidance for Residential Construction, which effectively cancelled and replaced its Interim Directive, STD 03-00-001. The committee emphasized the “advances in the types and capability of commercially available fall protection equipment” and its intention to rescind STD 3-1.0A unless “persuasive evidence” could be presented why 1926.501(b)(13) was infeasible or presented a greater hazard.
December 22, 2010: OSHA publishes STD 03-11-001 in the Federal Register (Volume 75, Number 245, Page 80315). The Department of Labor also issues News Release No. 10-1753-NAT announcing the new directive, stating: “There continues to be a high number of fall-related deaths in construction, and industry experts now feel that feasibility is no longer an issue or concern.”
July 16, 2011: On this date OSHA will enforce STD 03-11-001 on sites which demonstrate residential jurisdiction.