RE-GIFTED: The Residential Construction Fall Protection Standard Will Once Again Serve as The Measure of Compliance Now That OSHA Has Rescinded Its Interim Fall Protection Compliance Guidelines

With an apparent indifference to one of the worst housing markets in recent decades, the Occupational Safety and Health Administration (OSHA) recently breathed new life into an effectively dormant rule that undoubtedly has the potential to increase costs and slow production rates for the already struggling residential construction industry. Specifically, on December 22, 2010 -- less than a week after the U.S. Census Bureau and the Department of Housing and Urban Development jointly announced that privately-owned housing starts in November 2010 were 5.8 percent below the November 2009 rate1 -- OSHA issued a new directive, Fall Protection in Residential Construction (STD 03-11-002), that rescinded the agency's Interim Fall Protection Compliance Guidelines for Residential Construction (STD 03-00-001) (hereinafter Interim Guidelines). See 75 F.R. 80315 (December 22, 2010).

A New Directive that Revives an Old Standard

Prior to the issuance of the new directive (STD 03-11-002), the Interim Guidelines (effective since 1995) allowed residential construction employers to utilize specific alternative methods of fall protection (e.g., safety monitor systems or slide guards) in lieu of the conventional, and more onerous, methods of fall protection that are required under OSHA's Residential Construction Fall Protection Standard (e.g., personal fall arrest systems, guardrails, or safety nets). The use of alternative methods of fall protection described in the Interim Guidelines was permitted without the need to develop a written fall protection plan, or to first prove that the use of conventional fall protection was infeasible or created a greater hazard.

Now, with the issuance of OSHA's new directive, all employers that are engaged in residential construction activities must comply with OSHA's Residential Construction Fall Protection Standard (29 C.F.R. §1926.501(b)(13)), which although originally promulgated in 1994, was essentially relaxed for the better part of two decades.

General Requirements

OSHA's Residential Construction Fall Protection Standard requires that workers who perform residential construction activities at heights of six feet or more above lower levels must be protected by either: (i) conventional fall protection (e.g., guardrails, safety nets and/or personal fall arrest systems); or (ii) other fall protection measures that are permitted elsewhere in 29 C.F.R. §1926.501(b) (e.g., the use of warning lines and safety monitoring systems...