On November 18, 2016, OSHA published a final rule on Walking-Working Surfaces and Personal Fall Protection Systems (29 CFR 1910 Subpart D&I) that takes effect on January 17, 2017, just days before the next administration assumes control of the agency. While it is possible that Congress could seek to rescind the rule, using its powers under the Congressional Review Act (which happened to kill the OSHA ergonomics standard released at the very end of the Clinton administration), employers should be aware that they will be fully responsible for compliance in the interim.
THE FINAL RULE
The final rule includes revised and new information that addresses everything from stairways and ladders to scaffolds to fall protection systems to training and design requirements. It covers all employers engaged in general industry activities, so any hazardous fall exposures arising from poorly maintained or constructed walking and working surfaces will need to be addressed.
OSHA anticipates that the rule will cost about $300 million per year for general industry employers and contractors to implement, with the majority of the costs attributed to training ($74.2 million), scaffolds and rope descent systems ($71.6 million), and the revised duties associated with fall protection and falling object protection ($55.9 million). The rule is expected to save 29 lives per year and prevent nearly 6,000 non-fatal injuries annually.
Falls rank number two among causes of death in general industry, second only to motor vehicle accidents, and about 20 percent of all disabling workplace injuries are due to falls.
In the rule, OSHA addresses scaffold use in general industry by simply incorporating by reference the construction scaffold rules in 29 CFR Part 1926, Subpart L. The rule also contains specifications for the design of stairways, step bolts, and manhole steps.
Dockboards, both fixed and portable, must be used in a specified manner and measures such as wheel chocks are now required to prevent transport vehicles from moving while workers are on the dockboards.
One of the contentious issues was whether OSHA would rescind its existing enforcement policy to exempt “rolling stock” and other motor vehicles from the scope of the general industry fall protection standard. That exemption had its roots in a 1986 interpretative memorandum from OSHA, and was largely based on the infeasibility of tying off in non-fixed locations given the lack of rated anchorage points on many types of rail cars, bulk trucks, and similar mobile equipment. While OSHA says it is now feasible to use fall protection even when the equipment is not contiguous to a structure, it decided to continue its current enforcement exemption for this category of equipment (at least for now).
The revised standard is intended to be “performance-oriented” and it does give employers enhanced flexibility to now use personal fall arrest systems, travel restraints, safety net systems, or “designated areas” in lieu of installing guardrail systems or other fixed or portable barricades. This will be particularly helpful to contractors who perform mechanical, HVAC, or electrical work at heights within general industry facilities or who are doing maintenance to systems that fall outside the construction regulations. While OSHA sought to bring the general industry and construction rules largely into alignment, general industry retains the “4-foot” fall distance trigger while construction remains at 6 feet. In addition, personal fall protection or railing may still be required at lower heights if a worker could fall into moving equipment or onto dangerous surfaces such as uncapped rebar.
HAVING A PLAN
Some employers will have to have a written fall protection program under the new rules, particularly if they will perform non-construction work on residential roofs where use of personal fall prevention systems is deemed infeasible. Those employers would have to have a site-specific plan with detail on what methods will be used to protect workers as an alternative, which workers are affected, etc.
Non-roofing employers have a duty to inspect walking-working surfaces regularly to watch for hazards such as greasy or icy surfaces, areas with spills, protruding objects that could cause trips, holes in floors and walls, uncovered skylights, and railing systems that might have defects affecting safety. In addition, all ladders must be inspected before use and during the shift, and fixed ladders will have to be modify to meet the specifications, but certain types can delay modification for up to 20 years unless they are replaced or new components added earlier.
ROPE DESCENT SYSTEMS
There are also unique requirements for use of rope descent systems (such as those used by window washers) and for outdoor billboard work. The standard also makes some minor adjustments to the aerial lift rule, and communication towers standards (among others) to bring them in harmony with the changes.
Not only employers have obligations under the new rule. If rope descent systems will be used on buildings, the building owner must inspect and certify the rating of anchorage points that the RDS will utilize, and fall protection system components must also be inspected before use. All inspections should be documented, because otherwise it will be difficult to demonstrate compliance with the inspection requirements to OSHA. In addition, a written PPE hazard assessment is also required under a separate standard, 1910.132. All workers must also be trained on fall protection, and retrained as necessary, and all training should be documented as well.
Employers can expect OSHA to focus on walking and working surfaces and the use of scaffolds and ladders particularly during upcoming inspections, because the new rule will impose significant new requirements and provide more than a few “gotcha” scenarios resulting in citations against those companies that remain oblivious to the new mandates. ■
About The Author: Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a nine-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions – December 2016
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