By: Thomas H. Welby Geoffrey S. Pope Published: March 2019

Safety & Health Law Judge: Fall Protection Required When Employees Are Walking Across the Roof

Year after year, falls are the #1 cause of fatalities in construction, and fall protection violations are the single largest basis for OSHA citations in the industry.

This month’s lesson underscores that employees must be protected against falls at all times, whenever the danger is present.  In Secretary v. Ontario Exteriors, Inc., a roofer on a job replacing the roof of a two-family residence in the Finger Lakes region, fell from the roof, and suffered permanent, disabling injuries.  His employer’s unusual work rules regarding fall protection while entering and exiting the roof area were found to violate OSHA’s fall protection standard.

The eave of the roof at issue in Ontario Exteriors was about 18 feet above ground level, and the pitch of the roof was 9 in 12 (vertical to horizontal).  The roof had unprotected sides, and lacked guardrails and a safety net.

The rope that served as a fall arrest lifeline hooked into a D-ring anchorage point at one end, and was hooked onto the employee’s personal fall arrest harness at the other end.  At the end of each workday, the employees stored their fall arrest rope system (the rope itself with a 6-foot shock cord, and the clasp for hooking onto the roofer’s harness) not close to the eave as is customary, but at the roof’s peak.

On the day of the mishap six Ontario employees were stripping shingles near the roof’s peak.  One of them moved his rope from one D-ring anchorage point to another, but, as was determined afterward, failed to affix it properly.  This employee slipped, slid down the roof, fell 18 feet to the ground, and sustained permanent, disabling injuries, including spinal fractures.  OSHA cited Ontario for a “Serious” violation of the standard applicable to fall protection in residential construction, and the employer contested the citation and proposed penalty.  The matter was litigated under the “Simplified Proceedings” rules, and was tried before an Administrative Law Judge.

Typically, roofers and others working on elevated surfaces have their harness, lanyard, and the rope grab attached to the end of the lanyard on and ready, before climbing a ladder (or ascending on a lift) to the roof eave, or other elevated surface.  Ordinarily, the procedure is that, upon reaching the roof eave or edge of the elevated surface, the worker will attach his rope (that should be attached at the other end to an adequate anchorage point) to his harness immediately upon stepping onto the roof or other elevated surface.

At most residential worksites, the fall protection ropes are left at the roof eave, or hanging over the eave, at the end of the day.  On the site where the injury described took place, management dictated a different procedure.  Ontario’s employees were ordered to store their ropes at the roof’s peak at the end of each shift.

The ropes used were of sufficient length that they could have remained attached to the anchorage point at one end, and coiled at the roof eave at the other end, for the roofers’ use immediately upon reaching the top of the ladder at the beginning of their next shift.  Despite this, it was Ontario’s standard practice, and one enforced by the company’s officers, safety director, and project supers, that roofers be required to climb the ladder to the eave, step off the ladder onto the roof, walk to the roof’s peak, straddle the roof ridge, find the appropriate safety line, and only then hook the clasp onto the safety harness.  This sequence was reversed at the end of each shift.

Thus, although Ontario’s employees were directed not to perform any “roofing work” while moving between the eave and the roof peak without fall protection, their employer imposed a policy that forbade them from being tied off, at least twice each day, while moving between the ladder and roof eave, and the roof peak (where the ropes were required to be stored).

Ontario contended that the safety rationale for its policy was that assertedly it was easier to get on and off the ladder while unhooked; that it was cumbersome to climb the ladder while tied off; that it was too difficult to hook the rope to the harness’s D-ring with just one hand (the other hand being needed to hold onto the ladder) and that the anchorage point, and the attached rope, could not be inspected for security from the top of the ladder.

According to testimony by the injured roofer’s fellow employees, the employer’s true reason (or, perhaps, a reason in addition to those mentioned) for its unorthodox policy requiring not being tied off while moving between the eave and the peak, was that the employer, or possibly some clients, deemed storing the ropes at the eave to be unsightly, or that it posed a risk of damage to the structure’s siding.

At the trial of the contest proceeding, the OSHA Compliance Officer who had conducted the post-accident inspection testified he had never encountered an employer insisting that workers wait to reach the roof’s peak before securing their lanyards.  From his own experience, he testified, attaching the rope to the harness, while at the top of the ladder, takes just seconds.  Alternatively, if he hooked onto the fall arrest system before starting up the ladder, he just moved the rope grab with his left hand as he climbed the ladder.  It is very easy, the C.O. testified, to keep three points of contact, while repeatedly sliding the rope grab, thus achieving fall protection while climbing a ladder.  This, the C.O. maintained, was safer than simply climbing the ladder, stepping onto a roof, approaching and then straddling the ridge, and only then hooking the lanyard onto the harness.

The exemption applicable where all fall protection and anchorage points have been removed at the completion of a job, the C.O. insisted, did not apply in Ontario’s case, as the company was still actively engaged in roofing work, and fall protection was available and functional.

The ALJ affirmed the citation (although he assessed a smaller monetary penalty than the Secretary had recommended).  He rejected the employer’s argument that the employees were not “at work” while moving between the eave and the peak, or performing “roofing activity” before they had tied off to the anchorage points at the roof peak.

Ontario’s employees, the ALJ found, were subject to fall protection requirements at all locations on the worksite where they were exposed to a fall of more than 6 feet.  Exposure was not limited to the time an employee was engaged in a specific roofing activity, as the assigned workplace was the entire roof.  It was not the activity being performed, the ALJ found, that mandated fall protection, but the workers’ exposure to the hazards of falling from an elevated surface.

Ontario’s related  argument — that employees were not yet at work, until they reached the peak and tied off — was also rejected.  During the approximately one minute spent crossing the roof between the eave and the peak, employees were engaged in assigned work duties, and since they were exposed to a fall from a height greater than 6 feet, they were required to have fall protection.  “That it takes only a second for an employee to lose his footing and fall pointedly illustrates the rationale behind the [OSH Review Commission’s] refusal to negate a violation because of the brevity of employee exposure,” the ALJ observed.

The moral of this story goes beyond the teaching that employee exposure can occur whenever employees are “in the course of assigned working duties, personal comfort activities while on the job, or their normal means of ingress-egress to their assigned workplaces.” Nor is it solely that brief duration of exposure to a fall hazard does not negate the violation or its seriousness.

The main lesson here is that falls occur suddenly, and lives can be changed, or lost, in an instant.  If your employees work on elevated surfaces, they need to be protected from falls at all times.  You need to furnish them with adequate equipment.  You also need work rules, but rules are insufficient, unless they are communicated.  So, you need to be persistent in training.  Plus, you can have all the training in the world, but if workers are casual about tying off, and supervisors look the other way, your company is courting disaster — and we don’t mean just a citation, and a $12,000 penalty.  Don’t let that happen.

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