Flash Report: Do Residential Fall Changes Satisfy Stakeholders?

The Cal/OSHA Standards Board has published a 15-day notice of proposed modifications on its Fed-OSHA-mandated revisions to the residential construction fall protection standard, Construction Safety Orders §1716.2. The notice is for July 15th.

The Feds are demanding that Cal/OSHA upend a 20-year-old regulation negotiated in the early 2000s. Advocates cite it as a model of cooperation between industry and Cal/OSHA, and more importantly, it has proved safe.

Fed-OSHA insists that fall protection should start at six feet instead of the 15 feet currently in force for framing activities. The agency has threatened to take over enforcement for California construction if Cal/OSHA doesn’t make the change, but the industry has fought back vigorously.

The Board has attempted to broker a compromise; the notice is the latest effort. Comments on the proposed change are due by July 15th. The Board added language to §1716.2(e) stating that when walking or working on top plates, joists, rafters, trusses, beams, or other similar structural members for interior framing work that are between 6 and 15 feet, employers may use a fall protection plan (FPP) with safety monitors and a controlled access zone instead of conventional fall protection.

Attorney Kevin Bland, one of the leading proponents of retaining the current rules, calls the change “an attempt by the Standards Board staff to find a happy medium.”

Bland calls the move a “step in the right direction,” but says it still doesn’t satisfy the industry’s concerns. Employers must demonstrate that conventional fall protection is infeasible or would create a greater hazard before being able to use FPPs. A key question surrounding the 15-day notice is whether the change would ease that burden. “I think it might give some relief from infeasibility, but it’s not absolutely clear,” Bland tells Cal-OSHA Reporter.

Residential construction also wants to include a version of an appendix to the federal regulation that spells out the steps to managing FPPs instead of devising a plan for each project. Including an appendix would also promote “consistent safety practices for the carpenters from contractor to contractor,” he adds.

“For some reason, they have refused to include it as an option,” Bland says. “In fairness, I think they’re saying that’s what” the provisions of subsection (e) do, “but we don’t feel like that.”

Bland adds that today’s Supreme Court decision overturning the so-called “Chevron doctrine” on federal rulemaking could inform the industry’s next steps. The ruling states that in cases of ambiguity in federal law, judges don’t have to defer to experts in administrative agencies. This could have significant implications for the industry’s ability to challenge the proposed changes.

“Do they [Fed-OSHA] have this unlimited power to just arbitrarily say no, and if you don’t agree with us, we’re just shutting down your program,” he asks. “We’re going to analyze the overturning of the Chevron doctrine and how it would apply to the rulemaking being forced on California by OSHA.”

Click here for the Standards Board 15-day notice and how to weigh in on the proposed changes.