OSHRC reverses fall protection citation due to safety program

Abstract

A small company engaged in various types of waterproofing work was assessed a $1,500 citation for violation of CFR 1926.501(b)(13) — Duty to have fall protection, residential construction. However, the judge's decision was reversed upon further review by the Occupational Safety and Health Review Commission (OSHRC).

The waterproofing company, which was hired under contract to waterproof the balconies and breezeways on an apartment building, was cited for the violation after its foreman instructed his workers to waterproof balconies that did not have guardrails installed. Although the supervisor took steps to prevent the employees from working on unprotected balconies, he faced a tight deadline and no follow through from the general contractor that was responsible for installing the guardrails.

Conclusion

Although the judge concluded that the waterproofing company did not take reasonable alternative steps to protect its employees — since the supervisor made a single request to the general contractor — and failed to have a written safety program, written disciplinary program, and record of prior disciplinary actions, OSHRC reversed the judge's decision and voided the citation.

According to OSHRC, the waterproofing company took reasonable measures to prevent the occurrence of fall protection violations. The evidence established that the company had a verbal rule specifically prohibiting its employees from working on balconies without fall protection and that rule was adequately communicated to employee, including the foreman.

OSHRC could find no reason to question the adequacy of the waterproofing company's safety program simply because it was not written. The Commission went on to say that it has never required an employer to reduce its safety rules to writing.

OSHRC also disagreed with the judge's finding that the waterproofing company failed to provide sufficient evidence of enforcement. According to OSHRC, the owner's reprimand of the foreman after discovering that he had violated the fall protection rule demonstrated that the company enforced its safety rules.

Full text decision

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