The U.S. Occupational Safety and Health Administration (OSHA) has changed the rules on how remodelers and other residential contractors must protect workers from falls. In fact, OSHA has made residential fall protection its number one priority, placing companies with workers on ladders, scaffolds, or roofs under extra scrutiny. Remodelers who choose to ignore this new reality could be in for a rude awakening.
This change is fairly recent. When OSHA wrote its fall protection requirements for construction work in 1995, the National Association of Homebuilders and other trade groups complained that it was unreasonable to expect small residential contractors to follow the same protocols as larger, commercial-focused companies. OSHA’s resulting interim directive permitted residential workers to rely on alternative measures—for instance, using brackets and planks rather than harnesses.
In 2011, the agency withdrew the interim directive, making remodelers large and small subject to the full Fall Protection standard. In most cases, this means that any worker stationed 6 feet or more above a lower level requires a harness and an anchored safety line. There are additional rules for ladders or scaffolds, as well as training and administrative details the employer has to satisfy. Significant enforcement began in 2013. Why this new emphasis? According to OSHA, falls are the number one cause of construction deaths while the equipment designed to prevent these deadly accidents has become more affordable and easier to use. “We cannot tolerate workers getting killed in residential construction when effective means are readily available to prevent those deaths,” says Dr. David Michaels, assistant secretary of labor for OSHA.
The Administration is putting its teeth behind these requirements. Five years ago, the only time a remodeler would likely get into trouble for unsafe work conditions was if a worker got injured and sued the company. Now, there are more inspectors in the field looking for violations. “OSHA has definitely increased enforcement on residential jobsites,” says Matt Murphy, president of Safety Environmental Engineering, a safety trainer and consultant in Keedysville, Md. “And an inspector who sees workers on scaffolds or roofs will often stop to look for unsafe practices.”
Unprepared contractors may be shocked by the penalties. Harry Dietz, director of risk management with the National Roofing Contractors association, has seen fines as high as $7,000 for first-time violations, and up to $70,000 for repeat offenses. Murphy has also witnessed residential contractors hit with six-figure fines—more than enough to put a small company out of business. The actual amount will depend on how serious OSHA considers the violation and whether or not it’s deemed “willful.”
Learning the Ropes
The basics of the Fall Protection standard are covered in an 8-hour class, but the gist of the regulation is that the employer needs to protect any worker stationed 6 feet or more above a lower level. This can be accomplished with what OSHA defines as conventional fall protection—including guardrails, safety nets, and personal fall arrest systems—or with a custom solution engineered for the particular job.
An inspector who visits a job to investigate a fall hazard will likely walk around looking for other violations, which could include workers without safety glasses, saws without guards, or ungrounded extension cords. (Remodelers are subject to a range of OSHA rules many aren’t aware of.)
While the inspector’s main focus will be on work practices and equipment, he or she will also want to see documentation. Under the Fall Protection standard, employers must have a written safety plan, proof that employees have read the plan and received safety training, documentation of ongoing weekly training, and a plan for ensuring compliance. The contractor must also have provided employees with the necessary safety equipment.
The equipment is the easy part, with a basic “fall protection in a bucket” package starting at less than $150 per worker. The hard part is writing the safety plan and making sure that everyone on your team follows it.
According to Mark Paskell of The Contractor Coaching Partnership, an OSHA trainer and consultant based in Sterling, Mass., contractors who want to write their own fall protection plans should figure on an average of 16 hours of focused work. That includes reading the entire standard—officially known as 29 CFR 1926.501, Subparts M (Duty To Have Fall Protection), X (Ladders and Scaffolds) and L (Scaffolding Training)—and working through the plan template on the OSHA website.
Some contractors, including those who have taken the eight-hour training class, lack the time or the confidence to create their own plans, so they opt to hire a consultant. Costs of receiving this third-party input depend on just how much help the contractor wants, but Paskell says that a company with four workers should budget $3,000 to $5,000. That’s enough to buy the necessary fall protection equipment, and to pay the consultant to do a hazard assessment, write the plan and train the workers.
One way to shave costs is to request help from OSHA’s Small Business On-Site Consultation Program. This option is best for companies that are already making an effort to work safe, and that have purchased the necessary equipment. “If the consultant sees practices and conditions that are not safe for your employees, you will have to stop work until you correct them,” cautions Paskell.
Besides the initial training, the contractor must also hold weekly jobsite safety meetings or toolbox talks. Liz Donnelly of Cooperative Safety, a Cincinnati company that creates safety programs and provides training for area contractors, stresses the importance of documenting these talks. “An inspector will definitely want see how often you are doing training,” she says. “For every toolbox talk, I have a sign-in sheet as well as the specifics of the topic we covered that day. I keep these in a binder and also give a copy to the contractor.”
Costs and Compliance
Contractors who are in compliance with the full Fall Protection standard say that the bulked up regulations increase job costs. This boost in expenses is largely due to the time needed for jobsite meetings and the fact that the safety equipment slows workers down. Costs are easiest to measure in roofing. Dave Molloy, a roofer in the Cincinnati area, finds that the rule raises labor costs by about 10% on an average job. NRCA’s Dietz says this is typical.
One way to hold down costs is to spread them around. Molloy, who has 50 employees, formed a cooperative with five other contractors and hired Donnelly as their safety director. “Besides teaching the OSHA courses and conducting weekly safety meetings, she also does random inspections of jobsites, viewing them as an OSHA inspector would,” he says.
Molloy believes that this type of consistent enforcement is the only way to ensure that workers to follow the program. If a worker removes a safety line when on the roof, for example, the job supervisor writes a citation. Workers are suspended after two written warnings and terminated after three warnings during a 60-day period. On the other hand, if a crew has an exemplary safety record over time he will reward them, for example giving every crewmember a gift certificate.
The contractor or safety director also needs to document and save warnings and terminations. “If an OSHA inspector asks how we handle noncompliant workers, the fact that we suspend or fire them carries a lot more weight than if we simply talked to the worker,” Molloy says.
If an inspector visits the job and finds violations, the contractor will be invited to an informal meeting where and OSHA representative will decide whether to issue a citation. Murphy advises bringing a consultant along for this meeting. “The consultant will help you prepare the necessary documentation and help you make your case,” he says.
Should OSHA decide to write a citation, it’s best to hire a lawyer. “The issue is less the fine than the fact that the violation stays on your record,” says Amanda Weaver, an attorney with Richmond, Va., law firm Williams Mullen, who works with on OSHA-related cases. She says that an attorney with OSHA experience will work to get the classification reduced. “A serious violation sets the company up for heightened surveillance, and if there’s another incident in the future the penalties will be significantly higher.”