05.31.2011 OSHA: Residential Builders Can No Longer Bypass Fall Protection Requirements
By: Heath H. Galloway

In the final days of 2010, OSHA announced that it was rescinding a 15-year old policy that allowed residential builders to bypass certain fall protection requirements. The newly issued Compliance Guidance for Residential Construction cancels guidance in place since 1995 regarding OSHA's enforcement policy on fall protection for certain residential construction activities, and replaces it with a new mandate. Although it remained in place well over a decade, OSHA's prior guidance was intended as a temporary policy to address concerns about the feasibility of requiring conventional fall protection in the residential building context. OSHA's decision to rescind the exemption, which was supported by such strange bedfellows as the National Association of Home Builders and the AFL-CIO, was driven by the fact that there are, on average, 40 fall-related fatalities in the residential construction industry annually and a view within the industry that feasibility is no longer a significant concern.

For the last 15 years, OSHA permitted residential construction employers to utilize alternative fall protection measures including slide guards or safety monitor systems instead of conventional fall protection systems. Under the new compliance directive, however, all residential builders must fully comply with OSHA's fall protection standard, 29 CFR 1926.501, and ensure the use of guardrails, safety nets, or personal fall arrest systems to protect employees working six or more feet above a lower level. Residential construction employers may still avoid the new requirement if they can show that conventional fall protection is infeasible or creates a greater hazard. However, in such situations, the employer must ensure that a "qualified person" creates a written, site-specific fall protection plan providing alternative measures that eliminate or reduce the possibility of a fall. Furthermore, the site-specific plan must document the reasons why conventional fall protection is infeasible or more dangerous than the specified alternative measures. Employers may develop a single alternative plan for repeated use in the construction of a particular style or model of home, but only if the plan fully addresses all fall-protection issues at the specific site for which it is used. Although the directive is retroactively effective to December 16, 2010, OSHA has given residential construction and roofing companies up to six months to comply with the new requirement.  That window of opportunity is rapidly closing and, on June 16, 2011, OSHA will begin enforcing the new fall protection requirements for residential builders.

OSHA's new fall-protection directive quite literally changes the rules for employers in the residential construction industry. Indeed, any residential builder that has been in business for less than 15 years will face requirements that it has never encountered. Moreover, fall protection has been one of the highest priorities for OSHA in the commercial construction industry for years, and this new directive will undoubtedly bring stepped up fall-protection enforcement efforts targeting residential builders. Thus, all residential construction employers should act now to evaluate the adequacy of their fall-protection programs and subcontractor activities, and take preemptive steps to head off costly citations.

For more information about this topic, please contact the Heath H. Galloway, 804.420.6466 or , or any member of the Williams Mullen Labor & Employment Team.