OSHA grants fall-protection reprieve to residential contractors

In a June 9 news release, OSHA gave residential contractors a three-month reprieve from the new fall protection rules set to take effect June 16. I had written about the new rules in my May 9 article "OSHA strengthens rules on fall protection and outreach training." The new rules have created some confusion and much angst among residential contractors, trying to decide what the new rules will require of them.

Under the June 9 news release, OSHA has created a three-month "phase-in period" to allow residential contractors to come into compliance with the new directive. The "new directive" isn't really new at all, but simply rescinds a prior directive that has been in place since 1999 which allowed residential contractors some less stringent fall protection options than those normally required by Subpart M of the OSHA Construction standards.

The crux of the change is that, contrary to what residential contractors have been doing since 1999, they will now have to provide conventional fall protection (guardrail systems, safety net systems or personal fall arrest systems) to protect workers who are exposed to falls of six or more feet. This includes workers setting trusses, sheathing roofs, weatherproofing roofs, installing fascia and gutters or other residential roofing activities.

"We want to make sure that the residential construction industry has every opportunity to successfully come into compliance with the new directive," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "I am confident that this phase-in period will provide employers the additional time and flexibility they need to alter their work practices in accordance with the requirements of the new directive."

The three month phase-in period runs from June 16 to Sept.16, the normal peak time for residential construction. During this period, as long as the employer is in compliance with the former 1999 directive, OSHA will not issue a citation for non-compliance with the new directive. Instead, OSHA will issue the employer a "hazard alert letter" that will inform the employer of available alternative methods of fall protection they can use to come into compliance under the new directive.

Once an employer receives a hazard alert letter, if there is a subsequent OSHA inspection, and OSHA finds that the employer has not implemented the practices outlined in the hazard alert letter, the employer will be cited accordingly for failure to comply with the new directive. So the phase-in period does not actually postpone enforcement of the new directive, rather it treats non-compliance much like a de minimus violation, meaning penalties and citations will not be issued, unless a hazard alert letter has already been received.

This action by OSHA should be applauded. OSHA should consider taking this same approach with all OSHA violations. Think of the goodwill this could establish with the business community. Think of what this could do to increase workplace safety. Rather than issuing citations and penalties to business for first violations, OSHA would issue hazard alert letters, counseling those employers on how they can come into compliance with the violated standard. A citation and penalty would only be issued if, at a subsequent inspection, the employer was found to still be out of compliance.

This would help employers know exactly what they need to do to comply with the sometimes confusing OSHA standards; would encourage voluntary employer actions to created safer workplaces; and go a long way toward softening the adversarial relationship that often exists between OSHA and employers.

John Skowronek is a human resource specialist and OSHA trainer providing staffing and training services to Nevada businesses. His Reno-based staffing company is Square One Solutions. Contact him at 825-9675.