On April 28, 2020, the Occupational Safety and Health Review Commission issued a decision in Secretary of Labor v. Gate Precast Company relative to the OSHA construction fall standard. It is commonly perceived that the requirements for fall protection begin when employees work within six feet of an unprotected edge. Many employers, industry safety experts, and some OSHA inspectors have followed it as a rule of thumb.
What the Commission found is that the fall protection standard found at 29 CFR 1926.501(b)(1) does not expressly state a requirement for fall protection within six feet of an unprotected edge. The Commission held that fall protection is only required when it is reasonably predictable that employees have been, are, or will be in the zone of the danger that the standard is intended to prevent.
This case arose after an OSHA inspector cited an employer for failing to provide fall protection to employees who were staging, cleaning, and preparing to grout precast concrete sections on the second floor of a building. The OSHA inspector cited 29 CFR 1926.501(b)(1), which reads “[e]ach employee on a walking/working surface (horizontal and vertical surface) with an unprotected sire or edge which is 6 feet (1.8 m) or more above a lower level. . . be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.” An Administrative Law Judge (ALJ) affirmed the OSHA inspector’s citation and the employer filed an appeal with the Commission.
On appeal, the employer argued that the construction industry, as well as countless ALJ and Commission decisions, have recognized a “six-foot rule” that requires fall protection only when employees work six feet or less from an unprotected edge that is six feet or more above the ground. According to the employer, its employees were more than six feet from an unprotected edge when performing the cited task and thus not required to have fall protection.
In its decision, the Commission found that 29 CFR 1926.501(b)(1) does not include a six-foot lateral rule and that recognizing a six-foot lateral rule would be contrary to longstanding precedent on what constitutes the zone of danger. The Commission held that fall protection is only required when it is reasonably predictable that employees have been, are, or will be in the zone of the danger that the standard is intended to prevent.
Using this standard, the Commission found, employers, OSHA inspectors, and ALJs need to determine whether fall protection is needed on a case-by-case basis. This decision has the potential to significantly change how employers in the construction industry approach determining whether they need to provide their employees with fall protection.
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