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Fed OSHA Steps in on AZ Rule

Friday, August 22, 2014

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Unsatisfied with the rigor of Arizona's residential fall-protection rules, federal regulators are following through with a threat to impose their own.

As it has long warned, the Occupational Safety and Health Administration has initiated proceedings to throw out Arizona's fall-protection standard and to rescind federal approval of the Arizona state plan in the construction industry until the state develops a fall protection standard "at least as effective" as the federal standard.

Federal law requires any state-run OSHA to enact standards "at least as effective as" those of federal OSHA.

OSHA

OSHA expressed concern about state provisions for a variety of worker protections, including around joists, rafters and roof trusses.

Arizona's latest statute does not pass that test, federal OSHA says.

Proposed Rule

The proposed rule details the background of the dispute and what OSHA says are its repeated attempts to have Arizona fix the standard itself.

The federal rule would bring the state into compliance with current fall-protection rules now in effect nationwide.

The proposal also details how the dispute over the fall-protection rule complicates, if not jeopardizes, Arizona's entire State Plan for occupational safety and health. OSHA notes, for example, the difficulty of federal inspectors enforcing a single statute during an inspection while state inspectors review other conditions.

The proposed rule would not eliminate Arizona's State Plan, but it would return the program's status to "initial approval," rather than "final approval." The change would give the state and federal agencies concurrent enforcement authority—and a number of logistics to resolve.

Dr. David Michaels Gov. Jan Brewer
OSHA (left); Gage Skidmore; Wikimedia Commons

The issue pits federal OSHA, led by Dr. David Michaels, against Gov. Jan Brewer's Industrial Commission of Arizona. Federal OSHA says the state standards are too lax.

Public comments on the proposal are due Sept. 25.

State-Federal Standoff

The conflict dates to December 2010, when OSHA announced that it would resume enforcement of conventional fall protection requirements for residential roofing. The change rescinded what was to have been a temporary rule issued in 1995 that allowed residential builders to bypass fall protection requirements.

The return to OSHA's standard for construction fall protection was supported by the National Association of Home Builders; the AFL-CIO; and the Occupational Safety and Health State Plan Association, which represents the 27 states and territories that run their own OSH  programs.

The federal standard requires use of fall protection at a height of six feet, with exceptions for residential construction "where an employer can prove that conventional fall protection is infeasible in the circumstances or creates a greater hazard."

Arizona Plan

Arizona, however, responded in 2012 with an "Arizona-specific plan" that requires "very limited, if any," fall protection for employees working between six and 15 feet, according to OSHA.

Unlike the federal rquirement for conventional fall protection (fall arrest systems, nets or guardrails) at six feet or above, Arizona requires only a plan that "reduces or eliminates fall hazards" for those working up to 15 feet high.

Fall protection
OSHA

The measure would give federal and state agencies dual enforcement authority on job sites and revert "final approval" of Arizona's plan to "initial approval."

Federal OSHA also requires site-specific fall-protection plans; Arizona's allows employers to develop a single plan for all operations up to 15 feet.

Federal OSHA notified Arizona in December 2012 that the plan fell short of federal requirements, but the state offered no revisions, calling Arizona's program "at least as effective as the federal program."

Letter of Warning

In a letter March 19 to the Industrial Commission of Arizona, OSHA Administrator David Michaels said that the state plan did not meet federal standards.

Michaels noted two falls by unprotected workers in the summer of 2013 that left the victims severely injured. He also noted two falls by workers whose employers voluntarily followed the federal standard; those workers were not injured.

He also reminded the state that falls are, by far, the leading cause of death in construction.

   

Tagged categories: Enforcement; Fall protection; Health and safety; National Association of Home Builders (NAHB); OSHA; Residential Construction; Residential contractors

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