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Labor and the Law By Mark A. Lies II, James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen, Seyfarth Shaw LLP Massive Fall Protection Rule Issued in Final Hours Editor’s note – Mark A. Lies II is an aƩorney and partner with the Chicago, Illinois, law firm of Seyfarth Shaw LLP. He pracƟces in the areas of employment, occupaƟonal, safety, and health, and tort liƟgaƟon. James L. Curtis is a partner in Seyfarth Shaw’s Environmental, Safety, and Toxic Torts Group and co-chair of Seyfarth’s Whistleblower Team. Patrick D. Joyce is an associate aƩorney in the Environmental, Safety, and Toxic Tort Group pracƟcing in the areas of occupaƟonal safety and health, environmental litigation, environmental counseling, and construcƟon liƟgaƟon. Craig B. Simonsen is a senior liƟgaƟon paralegal with the Seyfarth Shaw Labor and Employment, Litigation, Workplace Safety and Health, and Environmental Compliance, Enforcement, and Permiƫng PracƟce Groups. Legal topics provide general informaƟon, not specific legal advice. Individual circumstances may limit or modify this informaƟon. Despite a congressional request that agencies not move forward on new regulaƟons during the transiƟon to the new administraƟon of United States President Donald Trump, the OccupaƟonal Safety and Health AdministraƟon (OSHA) issued a massive 513-page final rule last November revising and updaƟng its general industry standards on walking-working surfaces, including ramps, ladders, gangways, roofs, and other surfaces. While this rulemaking has been in the works since the 1990s, the original 293-page proposed rule was published in May 2010. Now, without any advance warning, OSHA promulgated the final rule and provided only 60 days for compliance. The final rule includes new and revised provisions addressing fixed ladders, rope descent systems, fall protecƟon systems and criteria, and training. In addiƟon, the final rule adds requirements on the design, performance, and use of personal fall protecƟon systems. In commenting on the new rule, outgoing OSHA Administrator Dr. David Michaels said that the “rule will increase workplace protecƟon from those hazards, especially fall hazards, which are a leading cause of worker deaths and injuries…OSHA believes advances in technology and greater flexibility will reduce worker deaths and injuries from falls.” Michaels indicated that the rule should also increase the “consistency between general and construcƟon industries, which will help employers and workers that work in both industries.” According to OSHA, the “rule’s most significant update is allowing employers to select the fall protecƟon system that works best for them, choosing from a range of accepted opƟons, including personal fall protecƟon systems. OSHA has permiƩed the use of personal fall protecƟon systems in the construcƟon industry since 1994 and the final rule adopts similar requirements for general industry. Other changes include allowing employers to use rope descent systems up to 300 feet above a lower level, prohibiting the use of body belts as part of a personal fall arrest system, and requiring worker training on personal fall protecƟon systems and fall equipment.” The new standard will affect 6.9 million establishments that employ 112 million individuals. OSHA also found that the ladder training will apply to 5.2 million employees engaged in the construcƟon, installaƟon, maintenance, repair, and moving operaƟons in general industry. Excluded from the new rules are employees that are outside of OSHA’s jurisdicƟon due to locaƟon or operaƟonal status, such as Department of TransportaƟon (railroad and trucking) responsibiliƟes or those that are subject to unique industry specific fall protecƟon standards, such as telecommunicaƟon and electric power generaƟon, transmission, and distribuƟon. OSHA esƟmates that full compliance with this rule will prevent over 5,800 injuries and 29 fataliƟes per year. Rule Timeline The rule went into effect on January 17, 2017, providing employers very liƩle Ɵme to come into compliance. However, some of the provisions have delayed effective dates, including: • Training employees on fall and equipment hazards – May 17, 2017; • Ensuring exposed workers are trained on fall hazards and workers who use equipment covered by the final rule are trained – July 17, 2017; • InspecƟng and cerƟfying permanent anchorages for rope descent systems – November 20, 2017; • Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor adverƟsing structures – November 19, 2018; • Ensuring exisƟng fixed ladders over 24 feet, including those on outdoor adverƟsing structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system – November 19, 2018; and • Replacing cages and wells (used as fall protecƟon) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet – November 18, 2036. For employers, compliance of this rule will represent a significant challenge, parƟcularly in light of the effecƟve date of the regulaƟon. In addiƟon, it will require employers to meet these requirements for outside contractors, temporary employees, and leased employees who may be at the worksite under OSHA’s mulƟemployer worksite doctrine. OSHA’s rule was published with a fact sheet and answers to quesƟons. 30 February 2017 Render www.rendermagazine.com


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