By: Thomas H. Welby Thomas H. Welby Published: July 2005

Safety Policy: Fall Protection: A Top Safety Priority (Part II)

We follow up last month’s “Scaffold Law Update” with a look at some OSHA cases involving fall-protection standards, as these are the leading cause, of construction industry citations.

Companies that have not reviewed their safety programs since OSHA overhauled its fall-protection standards in the late 1990s would do well to download OSHA Document 3146 (1998 revision), “Fall Protection in Construction,” which contains both a useful summary, and references for further study. In a nutshell, compatible fall protection measures must be provided wherever employees are exposed to a possible fall from a height of six feet or more. Principal methods include guardrail systems, safety net systems, personal fall arrest systems, positioning device systems (a body belt or body harness system), “controlled access zones,” and warning line systems.

The case law illustrates earnest efforts to enforce fall-protection standards, while avoiding interpretations of OSHA standards that fail to tell employers what compliance with the standards entails.

In Frank Lill & Son, Inc. v. Secretary of Labor, employees were seen working as high as 100 feet aloft without fall protection, or with only a horizontal wire rope, about 18 inches high, at the edge of the platform. Workers volunteered that there was no convenient place to tie off, and that even foremen and project managers frequently worked at great heights without doing so. OSHA cited Lill for a “willful” violation of 29 C.F.R. § 1925.501(b)(1), and proposed a $49,500 penalty for the “willful” violation.

The Administrative Law Judge downgraded Lill’s violation from “willful” to “serious,” based on proof that Lill had daily safety inspections and safety meetings, provided sufficient personal fall arrest systems for its employees, and disciplined employees who neglected to tie off while working at or close to the edge of platforms.

The Lill case came before the Court of Appeals when a Petition for Discretionary Review (“PDR”) to the OSH Review Commission (“Commission”) was not granted, making the ALJ’s order the final order of the Commission. Lill highlights a procedural pitfall, as the Court of Appeals refused to consider grounds challenging the finding of a violation. By statute, 29 U.S.C. § 660(a), absent “extraordinary circumstances” any grounds to challenge the ALJ’s findings that are not in the PDR cannot be considered by the courts of appeals. Thus, employers and their counsel should be sure to include all meritorious arguments before finalizing a PDR.

Lill’s defenses to the violation were also dismissed by the Court. Notably, the Court rejected Lill’s argument that the wire perimeter rope qualified as a “guardrail system.” This argument was found wanting, as the inspector testified that he had found the wire cable to be inadequate “because an adequate guardrail system has a toprail at 42 inches and a midrail at 21 inches.”

Lill’s failed also in its defense of “unpreventable employee misconduct.” To make out this defense, an employer must show that (1) it had a work rule to prevent the reckless behavior and/or unsafe condition; (2) it adequately communicated the rule to employees; (3) the employer took steps to discover incidents of noncompliance; and (4) the employer effectively enforced the rule.

In Lill, “there was abundant evidence that employees, including the site manager, did not tie-off while on the catwalks,” signs posted that directed employees to wear safety harnesses failed to indicate when the employees were required to tie off and, while some disciplinary efforts were shown, the employer “presented no proof that it endeavored to enforce its tie-off rule to employees who were not right at the edge.” These factors, plus statements by four employees that the tie-off rule was frequently violated, negated the defense.

In an earlier article, we discussed S. A. Storer and Sons Co. v. Secretary of Labor, which illustrated a noteworthy exception to the rule that elevated areas must be equipped with fall protection devices, and a critical legal principle — namely, that the “substantial deference” accorded the Secretary will not sustain an interpretation of a regulation that is clearly erroneous.

A principal issue in S.A. Storer was whether, where an employee is engaged in overhand bricklaying on a supported scaffold, fall protection must be provided on the side next to the wall being laid. “Overhand” bricklaying, of course, requires the mason to lean over the wall to work mortar into the interstices between the blocks, and “includes mason tending and electrical installation incorporated into the brick wall . . .”

Under 25 C.F.R. § 1926.451(g)(1)(vi), an employee performing overhand bricklaying from a scaffold must be protected from falling from all open sides and ends of the scaffold except at the side next to the wall being laid. This exception, Storer claimed, excused the lack of fall protection at a window opening (which was the basis of the citation).

The Secretary contended that the “overhand bricklaying” exception could not be applied, because Storer’s employees were not actually doing such work at the location of the window opening. Elaborating her position, the Secretary depicted the exception as a “limited,” “practical” accommodation. The exception should be recognized, the Secretary said, where “the presence of a guardrail between the mason and the wall being laid would interfere with or prevent the process of setting and mortaring the masonry.” However, the Secretary maintained, “if there is an opening . . . where wall is not being laid, then no deviation” can be justified from the “mandate” requiring fall protection. Storer, the Secretary asserted, was arguing for an “unlimited exemption,” that would “swallow” the fall-protection requirement “without practical or policy justification.”

Ruling for Storer on this issue, the Court of Appeals upbraided the Secretary for distorting Storer’s position — Storer was seeking “to do only what the words of the exception allow it to do” — and remarked that “a regulation cannot be construed to mean what an agency intended but did not adequately express.” If the Secretary is dissatisfied with the regulation, she should look to amend it, but not “by ascribing a meaning to words they simply do not have.”

The Court of Appeals found that the Secretary’s interpretation failed to reflect “clear, rational decision-making that gives regulated members of the public adequate notice of their obligations,” and vacated so much of the Commission’s order that regarded the window opening area of the wall being laid.

In Secretary of Labor v. Commercial Painting, Inc., the employer was cited for using a rough terrain forklift to support a work platform 21 feet above the ground. “Front-end loaders and similar pieces of equipment” are prohibited by the OSHA standard from being used to support scaffold platforms, unless they have been specifically designed for such use.

The forklift was found to be a “similar piece of equipment” within the standard, and the Commission affirmed a “serious” violation with a $1,250.00 penalty.

Citing § 17(j) of the Act, 19 U.S.C. § 666(j), the Commission in Commercial Painting noted that when assessing penalties, the Commission must give due consideration to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the history of previous violations.

“Generally,” the Commission observed, “the gravity of the violation is the primary consideration in assessing penalties.” “Gravity” is measured by “the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result.”

The Commission in Commercial Painting found that the two-employee crew was exposed to a 21-foot fall while the platform was elevated. If the platform and forklift tipped, the Commission found, “the likely result would be death or serious physical injury.”

Despite the modest sanction imposed, Commercial Painting still deserves to be read as an admonition that the violation of fall protection standards will not be taken lightly, and may subject the employer to findings of “serious” violations, and greater penalties for “serious” and “willful” violations.

The frequency, and in many cases the severity, of injuries from construction site falls should make fall protection a primary element of a cost-effective strategy for OSHA compliance, and jobsite risk management.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

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