September 30, 1985

Mr. D. Victor Saleeby
Executive Vice President
Scaffold Industry Association
14039 Sherman Way
Van Nuys, California 91405

Dear Mr. Saleeby:

This is in response to your letter of September 11, concerning fall protection for employees engaged in erecting or dismantling scaffolds.

The Occupational Safety and Health Administration's (OSHA) policy has been to require fall protection whenever employees are exposed to hazardous conditions meeting the criteria as defined in OSHA Instruction STD 3-3.1, entitled "Fall Protection in Construction: 29 CFR 1926.28 and 105(a)" (copy enclosed). A recent court case involving Spartan Rigging Corporation and Atlantic Rigging Corporation, as outlined in the Occupational Safety and Health Reporter, supports our position that OSHA require at times the use of guardrails or safety belts in dismantling scaffolds. In summary, the Court decided that the absence of fall protection to employees working at intermediate levels of scaffolds posed a hazard capable of serious physical harm or death. Tying employees off could be achieved in a matter of seconds and the wearing of safety belts in dismantling of scaffolds was feasible and did not pose a greater hazard than not wearing them.

When the Subpart L proposal is published in the Federal Register we will encourage employers to comment on the subject proposed standard. It is possible that we may receive comments on the proposal which would require us to modify the standard. However, the August 2 memorandum mentioned in your letters clarifies our current position in this matter and will not be withdrawn at this time.

If we can be of further assistance, please let us know.

Sincerely,



Patrick R. Tyson
Acting Assistant Secretary

Enclosure



September 11, 1985

Mr. Patrick Tyson
Acting Assistant Secretary
USDOL/OSHA
200 Constitution Ave. N.W.
Washington, D.C. 20210

Re: Fall Protection for employees engaged in erecting or dismantling scaffolds

Dear Mr. Tyson:

Several months ago I talked to Barry White, Director, Directorate of Safety Standards Programs, about a problem the scaffold industry was having with a particular OSHA office where the Region Administrator was requiring that scaffold erectors use safety belts and lifelines while erecting scaffolds.

In the past ten years, the Courts have consistently ruled that safety belts and lifelines are not feasible, nor required, during erecting and dismantling scaffolds.

Since current scaffold standards are silent on this subject, OSHA's Office of Compliance has assisted us in the past by supporting this position when problems have arisen in the field. It was not necessary to request a written interpretation in the past. However, in order to correct the problem at the Regional level, Barry White agreed to have John Miles, Director, Directorate of Field Operations, send a Memorandum to all Regional Administrators.

The intent of the August 2, 1985, Memorandum (see attached copy) was to support the position taken by the Courts and the Office of Compliance and to assure the Regional Administrators that the new proposal for Subpart L - Ladders and Scaffolding will specifically include a proposal in the text that will exempt employers engaged in erecting or dismantling scaffolds from the fall protection provisions.

Unfortunately, the first paragraph of the August 2, 1985, Memorandum contains statements with which we must take issue, as follows:

1. Quoting the first sentence: "It is not the intent of the construction scaffold standards to specifically require employees who erect or dismantle scaffolds to use a safety belt and lanyard at all times."

Due to the fact that scaffold standards are silent with respect to fall protection during erection and dismantling, the first sentence is incorrect since the last three words, "at all times," imply that a safety belt and lanyard are required for some indeterminate time.

2. Quoting the second sentence: "However, employees erecting or dismantling scaffolds must wear safety belts and lanyards in performing work at a stationary location for a period of time which allows the practical use of safety belts and lanyards."

The statement "a stationary location for a period of time" is not in the Standards and, therefore, imposes a new requirement of industry which cannot be promulgated by either Memorandum or Program Directive.

Aside from the question of imposing a new rule, the suggestion of "period of time" during which a worker would be required to use belts and lanyards is not acceptable or practical to industry. Would each compliance officer determine (at his own discretion) the length of that "period of time?" Would it be a couple of minutes, ten minutes or four hours?

If the August 2, 1985, Memorandum is not rescinded or corrected, each employer's potential liability would make it impossible to stay in business. The exposure to repeated and willful violations would be constant.

The greatest hazard is to the safety of the scaffold erectors. Anyone with knowledge and experience in our industry knows that safety lines and lanyards create a tripping hazard to erectors who must have mobility when moving about with scaffold equipment such as heavy frames and braces which could easily become entangled with lines.

Suppose an accident occurred and OSHA had a requirement that the erector be tied off "at a stationary location for a period of 10 or more minutes." Who would determine at what point in time the accident occurred?

Without a stopwatch, who is to say whether the accident occurred at 9 minutes or 11 minutes? Can you imagine the field day attorneys for the plaintiff and defense would have with that?

3. Quoting the third sentence: "It is OSHA's position that requiring the constant wearing of belts and lanyards while erecting or dismantling scaffolds could be hazardous to employees."

The word "constant" creates the same problem, since it also implies some indeterminate period of time.

Until such time as the new proposed Subpart L is promulgated, this matter should be clarified so as to avoid inconsistent application of the scaffold standards. We request that the August 2, 1985, Memorandum be withdrawn and that a new Memorandum be issued containing a statement that the current standards do not contain any stipulation that employees erecting or dismantling scaffolds must wear safety belts and lanyards while performing work at a stationary location for a period of time. This is necessary in order to correct the misconception arising in the field among compliance officers as well as administrators.

The last paragraph of the August 2, 1985, Memorandum should be retained as is or referred to Alan "Ike" Martin's office for correct wording.

Your assistance in achieving a speedy resolution of this problem would be appreciated.

Sincerely yours,



V. Victor Saleeby
Executive Vice President




August 2, 1985

MEMORANDUM FOR:   ALL REGIONAL ADMINISTRATORS

FROM:             JOHN B. MILES, JR., Director
                 Directorate of Field Operations

SUBJECT:          Fall Protection for employees engaged in
                 erecting or dismantling scaffolds in the 
                 Construction Industry

It is not the intent of the construction scaffold standards to specifically require employees who erect or dismantle scaffolds to use a safety belt and lanyard at all times. However, employees erecting or dismantling scaffolds must wear safety belts and lanyards in performing work at a stationary location for a period of time which allows the practical use of safety belts and lanyards. It is OSHA's position that requiring the constant wearing of belts and lanyards while erecting or dismantling scaffolds could be hazardous to employees.

The Directorate of Safety Standards Programs anticipates publishing a new proposal for Subpart L - Ladders and Scaffolding later this year. The fall protection proposed for employees erecting/dismantling scaffolds will be specifically included in that proposal and the text contains a provision which will exempt employees engaged in erecting or dismantling scaffolds from using any fall protection.