Standard Interpretations - Table of Contents|
| Standard Number:||1926.500; 1926.500(a)(1)|
Letter # 20091112-9340
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.
[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).
Standard Interpretations - Table of Contents|