The December 2010 compliance directive said 1926.501(b)(13) would be interpreted as written.

7th Circuit Upholds OSHA Fall Protection Directive

And the panel's reasoning in the April 7 decision offers support for the hearing protection reinterpretation OSHA recently withdrew.

A panel of three judges from the Chicago-based 7 U.S. Circuit Court of Appeals has issued a unanimous decision upholding OSHA's December 2010 compliance directive on fall protection to be used in residential construction. In an April 7, 10-page decision written by Chief Judge Frank H. Easterbrook, the court held that the directive is not a new safety standard, but rather an enforcement policy that the Labor Department may issue at its own discretion.

The case is National Roofing Contractors Association, et al. v. United States Department of Labor, et al., No. 11-1340. The contractors association sued because the new directive, Standard 03-11-002, rescinded a document that had been in place since June 1999 -- Interim Fall Protection Compliance Guidelines for Residential Construction, Standard 03-00-001. These interim guidelines told OSHA’s compliance officers not to cite roofing companies for violating 29 CFR 1926.501(b)(13) if they were using slide guards or other fall protection systems that were listed in the interim guidelines.

The December 2010 compliance directive reversed this and said 1926.501(b)(13) would be interpreted as written:

"Each employee engaged in residential construction activities 6 feet (1.8 m) or more above lower levels shall be protected by guardrail systems, safety net system, or personal fall arrest system unless another provision in paragraph (b) of this section provides for an alternative fall protection measure. Exception: When the employer can demonstrate that it is infeasible or creates a greater hazard to use these systems, the employer shall develop and implement a fall protection plan which meets the requirements of paragraph (k) of §1926.502.

"Note: There is a presumption that it is feasible and will not create a greater hazard to implement at least one of the above-listed fall protection systems. Accordingly, the employer has the burden of establishing that it is appropriate to implement a fall protection plan which complies with §1926.502(k) for a particular workplace situation, in lieu of implementing any of those systems."

Easterbrook's opinion states, "the 2010 Directive tells the construction industry what will lead the Secretary to launch administrative proceedings. Those proceedings, once under way, are governed entirely by the regulation; the 2010 Directive does not modify the rules. By deciding to enforce a 1994 regulation as written, the Secretary has not adopted a new 'occupational safety and health standard.' " He approvingly cites Steel Erectors Association of America, Inc. v. Occupational Safety and Health Administration, 2011 U.S. App. LEXIS 3137 (4th Cir. Feb. 17, 2011), which upheld a similar reversal of enforcement policy dealing with construction and repair of bridges and similar steel structures.

OSHA issued a news release April 14 announcing the court’s decision. "Fall protection saves lives," Assistant Secretary Dr. David Michaels said in the release. "There are effective means available to protect residential construction workers from falls. We applaud the court's decision upholding this updated, common-sense directive. Fatalities from falls are the number one cause of death in construction. These deaths are preventable, and we must prevent them."

The release does not mention OSHA’s briefly proposed reinterpretation of "feasible" engineering controls. It, too, was a reversal of longstanding OSHA enforcement policy that would have required employers to comply with an existing standard as written. Opponents charged that it was a new and costly regulation, and OSHA has withdrawn it for now. But two appeals courts now stand in support of its authority to issue it.

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