Patrick J. Miller Attorney, Sherman & Howard LLC, Denver
On Nov. 18, Occupational Safety and Health Administration issued its long-awaited final rule for “Walking/Working Surfaces and Personal Protective Equipment (Fall Protection Systems).” The new rule, which has been in the making since 1990, does not change any of OSHA’s construction industry standards, but, rather, updates requirements for walking and working surfaces in general industry (i.e., nonconstruction) workplaces, and covers hazards related to floors, ladders, stairs, ramps, scaffolds, elevated walkways and platforms, falls and falling objects. The new rule revises existing general industry standards meant to prevent slips, trips and falls, and adds new criteria for fall protection systems, including personal fall protection systems.
OSHA’s new rules could have a significant impact on Colorado’s commercial real estate community. While OSHA standards only apply to “employers,” they are not limited to the employers of the employees who are exposed to hazards. Any employer who creates a hazardous condition to which another employer’s workers are exposed can be held liable under OSHA’s “MultiEmployer Citation Policy” as long as that employer exercises enough control over the work environment. This means that the owner of a commercial real estate property, as long as it is also an employer, may be held accountable for the unsafe walking conditions to which its tenants’ employees are exposed. While such liability will be dependent upon the facts of any given case, all employers are encouraged to be familiar with the provisions of the new rule and review their safety and health policies in order to make sure they are in compliance.
The requirements of the new rule are complex, and this article will only highlight a few of them. According to OSHA, the new rules for fall protection are meant to align general industry requirements “as much as possible” with existing fall protection requirements in the construction industry. For example, previous general industry requirements for scaffolds have been replaced with a new rule requiring general industry employers to follow OSHA’s construction standard for scaffolds. In addition, just as with employers covered by OSHA’s construction standards, general industry employers may now select a fall protection system from among a range of options. Previously, OSHA required the use of guardrails as the primary fall protection method, but now the standard allows general industry employers to choose from other accepted fall protection systems, including safety nets and personal fall protection systems.
Other highlights of the new rule include:
• Adding corrosion, leaks, spills, snow and ice to the list of hazards that employers must eliminate from their walking/ working surfaces.
• Prohibiting the use of body belts as part of a personal fall arrest system and requiring, instead, body harnesses.
• Requiring employers to follow new rules regarding the performance, inspection and maintenance of personal fall protection systems.
• Requiring employers to inspect walking/working surfaces “regularly and as necessary” to guard against hazardous conditions.
• Requiring workers who use personal fall protection systems and other equipment in specified “high-hazard” situations to be trained, and retrained as necessary, in fall hazards and equipment hazards before they begin working at elevated heights.
• Phasing out an exception that allows “qualified climbers” in the outdoor advertising industry to work without fall protection, and phasing in fixed-ladder requirements and other fall protection requirements for employers working in the industry.
• Allowing employers, such as those engaged in building maintenance and window washing, to use rope descent systems only up to 300 feet above a lower level.
• Replacing detailed design and specification requirements for portable ladders with more generalized, performance based requirements.
While the new rule addresses many areas, there are certain topics that were not touched upon. For example, OSHA has not changed its existing rules with respect to exit routes or means of egress.
Most of the requirements in the new rule are scheduled to take effect Jan. 17, although required training for employees does not need to be completed until May 17. This short time frame for compliance will cause problems for employers, as the new standards are lengthy and, in some areas, complex. As of yet there has been no indication that the effective date of the new rule will be delayed, and employers who have not already begun to review their policies and procedures may find it difficult in the next few weeks to come into full compliance with the new requirements.
In addition to the short compliance deadline, there are other features of the new rule that will prove to be challenging for employers. For example, the requirement to inspect walking/working surfaces “regularly and as necessary” may prove to be problematic in practice, given that what could be considered “as necessary” might vary depending on the situation. This, combined with the added requirement of ensuring against such common occurrences as spills, snow and ice, might create compliance challenges for even the most well-intentioned of employers.
