Roofing Association Lose Appeal to Stop OSHA re:Fall Protection

[tweetmeme]Occupational Safety and Health Administration’s December 2010 directive on the use of fall protection in residential construction was upheld by the U.S. Court of Appeals for the Seventh Circuit after being challenged by the National Roofing Contractors Association.

OSHA’s new directive, standard 03-11-002, rescinded the Interim Fall Protection Compliance Guidelines for Residential Construction installed in 1999.  Prior to the issuance of this new directive, employers were allowed to engage in certain residential construction activities using specified alternative methods of fall protection rather than the conventional fall protection.  With the issuance of the new directive, all residential construction employers must comply with 29 Code of Federal Regulations 1926.501(b)(13).  

Construction and roofing companies have until June 16, 2011 to comply with the new directive.  Of course where residential builders can demonstrate that traditional fall protection is not feasible, 29 CFR 1926.501(b)(13) still allows for alternative means of providing protection.

The National Roofing Contractors Association contended in their suit that the 2010 Directive must be issued as a new Standard; because it subjects employers to requirements that they have not had to meet since mid-1999.

However the Court found that the 1999 Directive to allow the alternative fall protection did not alter the original regulation; it just allowed OSHA to exercise prosecutorial discretion in enforcing the regulation. For example, the alternative Directive indicated that if a contractor that uses a slide guard rather than one of the regulation’s methods now faces administrative litigation and may be found in violation if a defense based on the exception fails, when for the previous 10 years a slide guard was a sure way to “avoid liability”; it does not say this will “comply with the regulation.”  Therefore this new change is simply OSHA enforcing the original Regulation which had remained unchanged in 1999, yet not enforced by under previous administrations.

Read more at www.leagle.com or OSHA

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