Rejecting safety

OSHA formally rejects Arizona's standard for fall protection

On Feb. 6, the federal Occupational Safety and Health Administration (OSHA) formally rejected the state of Arizona's standard for fall protection used in residential construction (80 Federal Register 6652, Feb. 6, 2015). The action triggered a state legislative provision that caused Arizona's fall-protection rules for residential work to essentially revert to existing federal OSHA provisions. OSHA's action forestalled for the near future any effort by the federal agency to take over administration and enforcement of safety and health regulations in Arizona's residential construction industry.

However, OSHA's decision has increased uncertainty regarding the role of OSHA state-plan states. The decision begs the questions: What did Congress intend with regard to overall workplace safety when it penned the requirement in the Occupational Safety and Health (OSH) Act of 1970 that states' rules must be "at least as effective" as the federal rules? And should OSHA be doing something different to ensure worker safety?


On Dec. 22, 2010, OSHA issued a compliance directive rescinding a group of residential fall-protection alternatives for workers performing a variety of tasks, including work on foundations and formwork, setting of trusses, sheathing floors and roofs, work in attics and roofing work. The original instruction detailing these alternatives to conventional fall-protection systems (guardrails, safety nets and personal fall-arrest [PFA] systems) was published in 1995 and reissued in a plain-language version in 1999.

The alternatives came about as the result of different stakeholders in various industries, including NRCA, pointing out to OSHA conventional fall-protection methods often were not feasible or created a greater hazard to workers performing certain residential construction work. The effect of the rescission on the residential roofing industry was slide guards no longer could be the sole fall-protection system for worker protection on residential roof systems but could be used only with guardrails or PFA systems.

A cumbersome and administratively complex option of developing a fall-protection plan unique to the project, which ostensibly may provide for the use of slide guards, is available under OSHA's regulations. However, initial determinations a contractor must make before developing a plan are fraught with hindsight analysis by compliance officials making dependence on the option unsettled, and OSHA easily could issue a citation without regard to quality of plan implementation.

Arizona is a state authorized by OSHA to administer and enforce its own occupational safety and health rules under provisions of the OSH Act. Historically, the state incorporated and enforced federal OSHA rules for most work activity since it was given final approval as a qualifying state plan in 1985.

In March 2012, Arizona's legislature, in response to federal rescission of the residential fall-protection alternatives, took a somewhat unusual approach to occupational safety and health rulemaking by establishing special rules for residential construction and revising the state statutes through emergency legislation that became effective upon the governor's signature. Typically, a state or federal agency undertakes a rulemaking process under a legislative authorization to develop regulations to implement the provisions of the related legislative act.

Arizona Senate Bill 1441 had a number of rules related to residential construction, but the one of greatest concern to OSHA was a requirement that workers engaged in residential construction activities, for the most part, needed fall protection at heights of 15 feet or higher. The federal rule demands fall protection at heights of 6 feet or higher.

The rules also allowed for the use of slide guards, personal fall-restraint systems, eave barriers and catch platforms, depending on a roof's slope and eave height, and made provisions for short-duration work, such as repairs. Arizona also required a contractor to develop a written fall-protection plan detailing fall hazards and controls for all residential construction activities where workers are exposed to falls of 6 feet or higher. Such a written plan is not an element of federal rules but conceptually mirrors key aspects of OSHA's Injury and Illness Prevention Program (I2P2)—a foundational proposal of current OSHA leadership. I2P2 is based on fundamental risk management principles requiring a contractor to assess a workplace for hazards and apply appropriate controls based on the nature of the hazards.

In December 2012, OSHA's regional administrator initially found the rules put in place by Senate Bill 1441 did not provide protection to workers commensurate with federal Subpart M rules [1926.501(b)(13)]. In the meantime, Arizona's legislature attempted to correct some of the issues OSHA had with the new rules and avert a federal takeover of safety in its residential construction industry by amending the rules to say if OSHA formally published a rejection of the rules, the state's rules would revert to the federal rules in place before the legislature first acted.

With OSHA now formally rejecting the rules, as of Feb. 7, Arizona contractors now are bound by the federal rules requiring conventional fall protection at heights of 6 feet or higher. OSHA is deferring any action to rescind Arizona's state-plan status to closely watch how the state enforces the federal rules in residential construction.

Moving forward?

Arizona now enforces the federal rules as it did before using the 6-foot trigger height for fall protection and requiring only conventional fall-protection systems.

No longer part of the Arizona rules are fall-protection system options tailored to residential construction along with the requirement for a written fall-protection plan any time workers are exposed to falls of 6 feet or higher. In the formal rejection of the Arizona rule, OSHA notes some commenters who disagreed with OSHA's action cited the necessity of taking a holistic approach, similar to what an I2P2 program would demand of a contractor, when determining if a state's rules are "at least as effective."

Essentially, OSHA's position is the phrase "at least as effective" means select state provisions must be the same as federal provisions without regard to the dictionary definition of "effective." In fact, few in the occupational safety and health community, including OSHA, quote the phrase from the OSH Act in the fuller context in which it is written when describing state-plan standards: " … which standards (and the enforcement of which standards) are or will be at least as effective in providing safe and healthful employment and places of employment as the standards promulgated under …" the federal rules.

OSHA appears to give a slight nod to a holistic approach, but says use of conventional fall protection really is what makes for effective protection.

And therein lies the key issue—a look at the most recent fatality statistics from the Bureau of Labor Statistics points to the flaws in an approach that focuses on select regulatory language and slights other pertinent factors.

The stats

In 2013, a year in which Arizona operated under revised residential construction rules, the state had a construction workforce of about 123,000 workers. There were 13 deaths in the construction industry that year in Arizona, five of which were from falls, slips or trips. By comparison, Oklahoma is a state under federal jurisdiction and rules and has a workforce of 74,500 workers, slightly less than two-thirds Arizona's workforce. Oklahoma had 23 construction deaths in 2013, eight of which were the result of falls, slips or trips.

Although this is a perfunctory review and more in-depth analysis is needed, these numbers indicate operating under federal regulations may not ensure a safe and healthful place of employment, as demonstrated by workplace fatalities, when compared to operating in a state-plan state.

But what about comparing two states with similar construction workforce populations—one operates under federal rules and the other is a state-plan state with probably the most unique and divergent workplace rules when compared with federal rules and requires employers to implement an I2P2 program?

California is a state-plan state with a construction workforce of 20,000 workers more than Texas (a federal OSHA state) at 636,200 workers. California had 57 construction fatalities in 2013 compared with 113 in Texas. Of the construction deaths related to falls, slips or trips, California had 21 compared with 32 in Texas. This is not a one-year anomaly—California's 2012 construction fatality rate was 5.9 per 100,000 workers compared with 12.8 for Texas.

California has unique rules related to many occupational safety and health hazards, but none are more significantly different than fall protection.

California's fall-protection trigger heights in roofing vary with the type of work being done, the roof's slope and the materials being installed. Fall-protection system options are varied in roofing, and may include slide guards under some conditions, but a contractor assesses the hazards of a particular workplace and selects system controls among several options. This is a core technique embodied in an I2P2 program and the basis for worker safety without regard to the hazard. It does not appear to be a coincidence California has one of the best injury and illness records in the U.S., and the integration into the state's regulations with regard to trigger heights, system controls and employer assessment is critical.

National averages seem to indicate state-plan states may have a better grasp on what is important to keep workers safe. The average number of construction fatalities from falls in states with federal jurisdiction in 2013 was 6.2; in state-plan states, the number was 4.2. Granted, many of these state-plan states are enforcing federal rules, but this seems to support a conclusion that other factors aside from a fall-protection height threshold enter into workplace safety.

Safety is the goal

It is troubling OSHA has noted it is "in a dialogue" with other state-plan states with varying fall-protection height thresholds with the expectation the states will move toward ensuring they are at least as effective as OSHA with regard to that sole component of regulatory language.

The effectiveness of an occupational safety and health system managed by a government agency may be evaluated according to the functioning of many elements, but in the final analysis, worker safety should be the ultimate goal. The effectiveness of government standards designed to achieve worker safety within such a system must be assessed comprehensively, and injury and fatality statistics cannot be ignored. The holistic approach to worker safety California has implemented clearly is working—the proof is in the reduced fatality numbers.

Unfortunately, because of OSHA's narrow focus on trigger heights, valuable safety components are being ignored or, in Arizona's case, removed from the standard. State-to-state statistics regarding workplace falls must be scrutinized to determine reasons for disparities and any links to specific provisions in regulatory language.

In particular, nonconventional fall-protection system options tailored to specific workplace hazards, along with a contractor hazard evaluation process based on roof height, materials to be installed and roof slope, should be evaluated as regulatory necessities based on measurable workplace efficacy and historical performance rather than simply anecdotal evidence.

It is disappointing OSHA does not employ a scientific method more sophisticated than mere comparison of fall-protection height thresholds to determine the effect of state and federal fall-protection regulations. Ignoring results-based indicators that truly reflect the presence or absence of a safe and healthful place of employment does little to advance worker safety.

NRCA will continue to encourage OSHA to develop reasonable fall-protection regulations that provide optimal safety measures for roofing professionals working in a variety of fall-protection scenarios.

Harry Dietz is NRCA's director of risk management.

For additional articles related to this topic, see:

"Falling for safety," March 2013 issue
"Facing adversity," April 2011 issue
"California fall protection," August 2007 issue



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