More than 16 years after issuing the original notice of proposed rulemaking in 1990, the Occupational Safety and Health Administration (OSHA) has released a final rule revising its standards on slip, trip, and fall hazards and personal fall protection systems. 
Background
OSHA is charged with enforcing the Occupational Safety and Health Act of 1970 (OSH Act), which applies to virtually all private-sector employers. To that end, OSHA has promulgated a substantial set of “standards” with the goal of preventing workplace accidents and improving the quality of employees’ day-to-day work environments.
OSHA has long sought to update two of the original standards it promulgated in 1971: the rule governing walking and working surfaces, which requires general industry employers to protect employees from slips, trips, and falls, and the standard for personal protective equipment. Beginning in 1973, only two years after adopting the standards, OSHA initiated several attempts to bring them up to date with industry practices and technology. However, the speed of the administrative process made OSHA’s proposals outdated before they could become a final rule.
In April 1990, OSHA published another notice of proposed rulemaking seeking to update the two standards. After multiple hearings, public comment periods, and a second notice of proposed rulemaking, the agency submitted its proposed rule to the Office of Management and Budget (OMB) for final review in July 2016.
OSHA’s Final Rule on Walking-Working Surfaces and Personal Fall Protection Systems was published in the Federal Register on November 18, 2016. It became effective on January 17, 2017, although some of the specific requirements have later implementation dates.
Some key changes in the final rule
The final rule is broad and very long. (Including OSHA’s comments to the rule, it runs more than 500 pages in the Federal Register.) Its provisions addressing walking and working surfaces cover floors, ladders, stairways, steps, roofs, ramps, runways, aisles, scaffolds, dock boards, and step bolts, and apply to all general industry employers. In practical terms, as long as a company has a physical workplace, the rule applies.
OSHA has indicated that the final rule’s most significant update is that it allows employers to choose a fall protection system that works best for them “from a range of accepted options,” thus giving companies greater compliance flexibility. Other changes include requiring worker training on personal fall protection systems and consolidating OSHA’s standards on ladder safety.
The fall protection provisions obviously affect companies whose services inherently require elevated work, such as building maintenance companies, cable providers, and outdoor advertisers. However, equipment and surfaces like stockroom stepladders, elevated platforms for loading and unloading merchandise, automotive repair bays and pits, and even stairs in an office building are also covered by the rules.
Fall protection. As in the previous rule, employers must ensure that employees working on a surface with an unprotected edge four feet or more above a lower level are protected from falling. However, the final rule specifies that employers generally must use either guardrail systems, safety net systems, or personal fall protection systems (e.g., personal fall arrest, travel restraint, or positioning systems) to do so. The standard is even more specific with respect to hoist areas, runways, areas above dangerous equipment, wall openings, repair pits, stairways, scaffolds, and residential roofs.
Thus, although the final rule purports to give employers compliance flexibility, it provides only a very short list of acceptable options to choose from in many situations. It remains to be seen how OSHA will enforce the standards for industries in which the approved fall protection systems are not feasible or create a greater hazard than alternatives that are not on the list.
Training. Like the analogous OSHA standard for the construction industry, and unlike the previous rule, the final rule imposes explicit fall protection training requirements. For example, employers must train employees on the identification of fall hazards, the proper use of personal fall protection systems, and the proper care, inspection, and storage of fall protection equipment. The standard contains specific requirements for what the training must include, who must conduct it, and how training is to be communicated to employees. The training has a delayed completion date of May 17, 2017.
In addition, employers that have reason to believe that employees don’t have the required understanding and skill must retrain them. For example, that may occur when workplace changes or new fall protection systems or equipment render previous training inadequate or obsolete, or when inadequacies in an employee’s knowledge or use of fall protection systems or equipment indicate an inability to use the equipment or perform the job safely.
Ladder safety. Unlike the previous rule, the final rule consolidates the existing general industry ladder requirements into one section. It covers wood, metal, and fiberglass or composite ladders; portable and fixed ladders; stepladders and stepstools; and other job-specific ladders, but excludes ladders used in emergency operations (e.g., firefighting, rescue, and tactical law enforcement operations) or training for emergency operations. The standard includes general requirements applicable to all covered ladders as well as requirements specific to certain types of ladders.
Bottom line
Like any agency action, the Final Rule on Walking-Working Surfaces and Personal Fall Protection Systems is subject to challenge. That’s especially true since it was published at the end of an outgoing presidential administration. However, with the increase in OSHA’s maximum penalties this year (from to $70,000 to $124,709 per willful or repeat violation, and from $7,000 to $12,471 for less severe categories of violations), the cost of even arguable noncompliance can be significant. Moreover, many of OSHA’s comments to the final rule confuse instead of clarify employers’ new obligations. Therefore, all general industry employers should quickly familiarize themselves with the provisions that may apply to their workplaces and consult with counsel as necessary.
This article was excerpted from New Jersey Employment Law Letter, which is written by attorneys at Day Pitney LLP.