OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

August 4, 1994

MEMORANDUM FOR    JOSEPH A. DEAR
                  Assistant Secretary for Occupational
                  Safety and Health

FROM:             JOSEPH M. WOODWARD
                  Associate Solicitor for Occupational
                  Safety and Health

SUBJECT:          Favorable decision in Peterson Brothers Steel Erection
                  Company v. Robert B. Reich, Secretary of Labor, 5th
                  Cir. No.93-4913 (July 21, 1994)

In a published decision, the U.S. Court of Appeals for the Fifth Circuit upheld our application of the general construction industry fall protection standard, 29 C.F.R. 1926.105(a), to a steel erection industry employer. Peterson Brothers had petitioned for review of an Occupational Safety and Health Review Commission order affirming the citation, which alleged the company violated the standard by failing to provide perimeter safety nets to protect its employees against a fall to the exterior of the structure they were building.

The court first concluded that Peterson had fair notice that the standard applied. In support of its argument that it lacked notice, the company had noted the following factors: Commission decisions had held that the general construction industry standards were preempted by the specific steel erection standards; industry custom was not to use perimeter safety nets; it had not previously been cited for failure to use nets; none of its employees had ever fallen to the exterior of a building under construction; and the Secretary had not widely enforced the standard. The court rejected these arguments, emphasizing instead that the company was put on notice because several circuit courts had rejected the Commission's position and had held the steel erection provisions addressing interior fall hazards did not preempt the general construction standards requirement for exterior fall protection.

The court then determined substantial evidence supported the finding that Peterson Brothers should have provided perimeter safety nets. The court concluded that the installation of temporary floors and the use of safety belts by some employees were insufficient to satisfy the standard, because these devices provided no protection to connectors who were working on the building's exterior without safety belts.

Finally, the court rejected the employer's affirmative defense of impossibility. Peterson Brothers had argued its construction method precluded the placement of nets any closer than three stories below where the connectors worked, and thus it could not comply with the requirement that nets be installed no more than 25 feet below the workers. The court held the Commission did not abuse its discretion in ruling that this evidence was insufficient to establish technical impossiblity: "Peterson Brothers must comply to the extent it can even if complete compliance is not possible." The court also held the Commission properly exercised its discretion in rejecting Peterson Brothers' claim that it would have been economically infeasible to install nets. The court noted that the company's cost estimate was "inexact," and that the company improperly based its assertion that it would be competitively disadvantaged if it provided nets on the assumption that other employers would violate the standard.