- Standard Number:
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.
April 20, 2004
St. Paul Companies
16115 14th Avenue North
Plymouth, Minnesota 55447
Re: Fall protection requirements for employees performing work at the leading edge during precast concrete erection operations.
Dear Mr. Monson:
This is in response to your February 13, 2004, letter to the Occupational Safety and Health Administration (OSHA) regarding fall protection requirements under 29 CFR Part 1926 Subpart M (Fall Protection) for workers at the leading edge during precast concrete erection operations.
We have paraphrased your questions below:
Question: Does 29 CFR Part 1926 Subpart M establish that use of a fall arrest system ("tying-off") is considered a greater hazard than implementing a controlled access zone (CAZ) when performing work at the leading edge during precast concrete erection operations?
Answer: No. As explained below, the standard does not establish that conventional fall protection poses a greater hazard than use of a CAZ when performing work at the leading edge during precast concrete erection operations. However, OSHA has a compliance policy, based on enforcement priorities, that permits the use of alternative measures for this work without having to first demonstrate that conventional fall protection is infeasible or creates a greater hazard.
Title 29 CFR 1926.501(b)(12) states:
Precast concrete erection. Each employee engaged in the erection of precast concrete members (including, but not limited to the erection of wall panels, columns, beams, and floor and roof "tees") and related operations such as grouting of precast concrete members, who is 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, or personal fall arrest systems, unless another provision in paragraph (b) of this section provides for an alternative fall protection measure.
Exception: When the employer can demonstrate that it is infeasible or creates a greater hazard to use these systems, the employer shall develop and implement a fall protection plan which meets the requirements of paragraph (k) of 1926.502.
NOTE: There is a presumption that it is feasible and will not create a greater hazard to implement at least one of the above-listed fall protection systems. Accordingly, the employer has the burden of establishing that it is appropriate to implement a fall protection plan which complies with §1926.502(k) for a particular workplace situation in lieu of implementing any of those systems. [Emphasis added.]
This provision clearly states that the use of conventional fall protection for leading edge precast concrete erection work is presumed to be feasible and presumed not to create a greater hazard. It specifically places the burden on the employer to demonstrate infeasibility or greater hazard before alternative means of protection may be used.
Although Appendix E gives sample reasons that may be used to show infeasibility or greater hazard, §1926.501(b)(12) does not permit the employer to use an Appendix E plan unless it has made a demonstration that, in the specific instance in question, conventional fall protection would be infeasible or present a greater hazard.
The preamble to Subpart M also reflects the Agency's view that such systems are presumed not to create a greater hazard when used for this work:
The new provision [§1926.501(b)(12)] requires employers who can demonstrate that the use of conventional fall protection systems would be infeasible or would create a greater hazard to implement a fall protection plan that complies with §1926.502(k) of the final rule.... The Agency considers the implementation of a fall protection plan, outlining alternative fall protection measures, to be a "last resort," allowed only where the other options for fall protection have been exhausted. [Volume 59 of the Federal Register, page 40692, August 9, 1994.]
In sum, the plain language of §1926.501(b)(12) states an explicit preference for use of conventional fall protection (fall restraint or fall arrest, safety nets, or guardrails) instead of alternative fall protection measures such as a CAZ or safety monitoring system. "[T]here is a presumption that it is feasible and will not create a greater hazard to implement at least one of the above-listed fall protection systems [reference to those listed in §1926.501(b)(12)]." Furthermore, the preamble also indicates this preference when it explains that implementation of a fall protection plan, outlining alternative fall protection measures, is considered a "last resort," and permitted only where the other options for fall protection have been "exhausted."
On July 12, 1995, Deputy Assistant Secretary James Stanley issued a Memorandum (Enforcement Policy) to Regional Administrators ("Stanley memo") addressing whether employers may use an alternative fall protection plan in accordance with Appendix E of the Standard without the need to justify at each site the infeasibility or greater hazard of conventional fall protection. In relevant part, the Stanley memo, states:
To eliminate the need for contractors to repeatedly make the same arguments and demonstrations at each project site with regard to infeasibility or greater hazard, OSHA will accept the reasons provided in the sample fall protection plan as meeting the plan justification requirements of the standard.
Likewise, the alternative procedures, when performed in accordance with the sample fall protection plans contained in Appendix E, are deemed as meeting the intent of the fall protection requirements of Subpart M. Only those employers who either fail to provide conventional fall protection, or fail to develop and follow a fall protection plan (such as but not limited to the sample fall protection plans in Appendix E) should be issued a citation for failure to provide fall protection. In addition, fall protection plans need to be site specific only to the extent that they address the fall hazards present at that site. One plan can cover several sites if similar conditions exist.
The Stanley memo states the current compliance policy that permits employers to use the alternative fall protection methods in Appendix E without having to meet the Subpart M burden of first demonstrating infeasibility or greater hazard. That compliance policy permits the Agency to direct its enforcement resources to issues that the Agency currently believes have higher priorities than demonstrations of greater hazard in leading edge precast erection. That memo, however, has not amended §1926.501(b)(12); such an amendment could only be made through rulemaking.
If you need additional information, please contact us by fax (202-693-1689) at: U.S. Department of Labor, OSHA, Office of Construction Standards and Guidance. You can also contact us by mail at U.S. Department of Labor, OSHA, Office of Construction Standards and Guidance, Room N3468, 200 Constitution Avenue, N.W., Washington, D.C. 20210, although there will be a delay in our receiving correspondence by mail.
Russell B. Swanson, Director
Directorate of Construction