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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 https://www.osha.gov.
Letter # 20091112-9340
Re: Interpretation of OSHA Fall Protection Exemption (29 CFR § 1926.500(a)(1)) during inspection, investigation, and assessment activities.
Scenario: Section 1926.500(a)(1) allows inspectors to be exempted from the fall protection requirements of Subpart M when performing an inspection before or after the performance of work. In this scenario, engineers are contracted to inspect a roof prior to the beginning of construction. To perform a three hour inspection of the roofing membrane, the engineers must kneel within inches of the edge of the roof to access inspection areas. In addition, they must lean over or towards the edge to use hand tools like drills, screw drivers, and small saws to remove flashing and parapet caps. The inspectors use no fall protection and the fall distance to a lower level is 40 feet.
Question (1): How does OSHA define "short duration" within the context of § 1926.500(a)(1) and when would or could the length of an inspection or investigation negate the intent of the fall protection exemption?
Answer (1): Section 1926.500(a)(1) states:
This subpart sets forth requirements and criteria for fall protection in construction workplaces covered under 29 CFR Part 1926. Exception: The provisions of this subpart do not apply when employees are making an inspection, investigation, or assessment of workplace conditions prior to the actual start of construction work or after all construction work has been completed. (Emphasis added).
As a practical matter, OSHA has consistently rejected specifying an acceptable time span for a worker to be exposed to a fall hazard. This position was previously explained in an interpretation letter dated March 12, 2004 that was issued to Mr. Randy Stahl. However, the explanation of §1926.500(a)(1) of the final rule, at 59 FR 40675, describes how time can be used as one of several factors in determining if fall protection must be used during an inspection that is performed before or after work. The explanation of the rule states:
OSHA has set this exception because employees engaged in inspecting, investigating and assessing workplace conditions before the actual work begins or after work has been completed are exposed to fall hazards for very short durations, if at all, since they most likely would be able to accomplish their work without going near the danger zone....[R]equiring the installation of fall protection systems under such circumstances would expose the employee who installs those systems to falling hazards for a longer time than the person performing an inspection or similar work. (Emphasis added).
Please note that, in addition to the exposure time of an employee during the installation of fall protection systems, the necessity for the inspector to go near the danger zone would be another factor in determining whether fall protection must be used. In most cases, limiting the duration of an inspection when an inspector never goes anywhere close to the unprotected side or edge would be arbitrary. In contrast, in the scenario you describe, leaning over an unprotected side or edge that is 40 feet above a lower level to remove roofing materials with tools is a significant risk of injury or death regardless of how quickly the inspection can be completed. For reasons like these, OSHA has determined that requiring fall protection based solely on how long it would take an inspector to do the inspection would be impractical.
Question (2): Does the fall protection exemption apply when inspecting, investigating, or assessing procedures put workers directly in the danger zone for extended periods of time?
Answer (2): As stated above, the fall protection exemption anticipates that inspectors likely would be able to accomplish their work without going near the danger zone. In the situation you describe, inspectors were exposed to fall hazards for up to three hours when kneeling within inches of a danger zone with a 40 foot drop. Therefore, the nature of the work was not consistent with the intent of the exemption. Scenarios that keep employees in close proximity to a fall hazard would not fall under the exemption allowed by §1926.500(a)(1).
Question (3): Is inspecting, investigating, or assessing primarily a visual task? Would the task become maintenance or construction activity when tools are involved which could divert the attention away from fall hazard awareness?
Answer (3): The preamble to the final rule, at 59 FR 40675, states:
[T]he Agency's experience is that such individuals who are not continually or routinely exposed to fall hazards tend to be very focused on their footing, ever alert and aware of the hazards associated with falling.... [E]mployees who inspect, investigate or assess workplace conditions will be more aware of their proximity to an unprotected edge than, for example, a roofer who is moving backwards while operating a felt laying machine, or a plumber whose attention is on overhead pipe and not on the floor edge.... [I]f inspections are made while construction operations are underway, all employees who are exposed to fall hazards while performing these inspections must be protected as required by subpart M. (Emphasis added).
In addition it states:
[T]he exception would apply where an employee goes onto a roof in need of repair to inspect the roof and to estimate what work is needed.... The intent of the provision is also to recognize that after all work has been completed, and workers have left the area, there may be a need for building inspectors, owners, etc. to inspect the work.
Also, the March 12, 2004 letter of interpretation explains:
[A]nother basis for the exception was the concept that in inspections before and after the work is done, there is no on-going construction work to divert the inspector's attention from the fall hazard. Once there is construction activity, the risk goes up by virtue of that diversion of attention.
In an ideal situation, inspections would only be visual, but §1926.500(a)(1) does not prohibit inspectors from using tools to perform tasks like opening covers and making measurements needed to complete inspections. However, in the scenario you describe, the inspectors must maintain their balance, use hand tools to manipulate and inspect roofing materials, and perform these tasks while at or leaning over the unprotected edge of a roof. The combination of these activities could distract the inspector and increase the risk of falling 40 feet to a lower level. As explained above, work activities during which tools are used in a potentially distracting manner in close proximity to fall hazards would not fall under the exemption allowed by §1926.500(a)(1).
If you need additional information, please contact us by fax at: U.S. Department of Labor, OSHA, Directorate of Construction, Office of Construction Standards and Guidance, fax # 202-693-1689. You can also contact us by mail at the above office, Room N3468, 200 Constitution Avenue, N.W., Washington, D.C. 20210, although there will be a delay in our receiving correspondence by mail.
Richard E. Fairfax, Acting Director
Directorate of Construction