OSHA Compliance Outside the Box:Variances, Exceptions, and Interpretations

Does the Occupational Safety and Health Administration (OSHA) recognize fall restraint as an alternative to fall protection? Can an employee be exempt from wearing a hard hat? Believe it or not, OSHA has provided a positive response to these requests as well as many others. Its intent is to provide protection to employees. Compliance with certain regulations may not be feasible and/or can create an even greater hazard. If an employer can find a better alternative, or if the rule is superseded by another, strict adherence to specific requirements may not be necessary. Electrical contractors often encounter unusual site conditions that make compliance difficult, if not impossible. Knowing how to acquire or identify an exception to the rule can make life easier. When a rule is written, it must go through various stages of public review and comment. OSHA must respond to the comments. The result is that special concerns are often addressed in the preamble to the rule. One example of this is the ability to carry materials while climbing a ladder. Part 1926.1053 Ladders (b)(22) states: “An employee shall not carry any object or load that could cause the employee to lose balance...” However, the preamble of the final rule (55 FR 47682), which was published November 14, 1990, stated: “Although OSHA believes that small items such as hammers, pliers, measuring tapes, nails, paint brushes, and similar items should be carried in pouches, holsters, or belt loops, the language in the final rule would not preclude an employee from carrying such items while climbing a ladder so long as the items don’t impede the employee’s ability to maintain full control while climbing or descending the ladder. It is OSHA’s belief that the employee’s focus and attention while climbing up and/or down a ladder should be on making a safe ascent or descent and not on transporting items up and down the ladder. OSHA notes that an employee who needs to take a large or heavy object to a different level by means of a ladder can pull the object up or lower it with a handline.” This demonstrates the value of the preamble: It offers a good place to start. If you cannot find an answer in the preamble, consider proposing an alternative to the Directorate of Compliance. The current Directorate is Richard E. Fairfax who can be reached at the U.S. Department of Labor, Directorate of Compliance Programs (OSHA) - Room: N3603, 200 Constitution Avenue N.W., Washington, D.C. 20210; telephone: (202) 693-2100; fax: (202) 693-1681. Before writing, search OSHA’s Web site (www.osha.gov) for pre-existing letters that address your concern. If not, nothing is lost. A review of the letters can provide insight on an approach which may be successful. Consider the following requests which were approved. A union requested an exception for the load limitation on Class 1A heavy-duty ladders. The maximum weight allowed is 300 pounds. The union noted the use of a special leg attachment which had been tested successfully by the manufacturer up to 360 pounds. The request further expressed the need for an immediate response to avoid the loss of employment to those members who exceeded the weight restriction. OSHA stated the following in the letter of interpretation: “With regard to modifying a ladder to accommodate loads in excess of the manufacturer’s rated capacity (e.g., by the installation of Safe-T-Legs), please be advised that OSHA would consider modified ladders to be in compliance with this requirement if a registered professional engineer has certified that the ladder, as modified, meets OSHA’s 3.3 to 1 strength to intended load ratio requirement and the ladder is used in accordance with the certification.” Note the equipment had been tested. It also created a different ladder, which complied with an established safety factor. An employer seeking exemption to the fall protection rule used a different approach. The employer attempted to show that it should not be compelled to comply with the rule, as it did not apply to their operation. OSHA would not provide exemption, but did recognize the absence of exposure to a fall. Their letter stated: “Although OSHA cannot exempt you from any part of the standards, we do concur that if certain portions of the standards do not apply to your operation, then you do not have to be concerned about complying with those sections. For example, if you do not utilize a controlled access zone, you do not have to follow those portions of the standards dealing with controlled access zones. Although the standard does not mention them, we do accept properly utilized fall restraint systems in lieu of fall arrest systems when the restraint system is rigged in such a way that the employee cannot get to the fall hazard. We suggest that, as a minimum, fall restraint systems have the capacity to withstand at least three thousand (3,000) pounds of force or twice the maximum expected force that is needed to restrain the person from exposure to the fall hazard. In determining this force, consideration should be given to site-specific factors such as the force generated by a person walking, leaning, or sliding down the work surface.” The letter reminded the employer of other provisions of the standard that must be met, such as falling object protection. In a particularly unusual case, an employer requested exemption for compliance with the use of hard hats based on religious reasons. OSHA initially addressed this issue in a letter of interpretation. The exemption was granted. The decision was reversed in 1990 as a result of a Supreme Court decision Employment Division, Department of Human Resources v. Smith, 110 S.Ct. 1595 (1990) (the peyote case). Basically the court stated, the First Amendment “does not relieve the obligation to comply with a neutral, generally applicable law” that is not directed at interfering with the exercise of an individual’s religion. On November 16, 1993, President Clinton signed into law the Religious Freedom Restoration Act (RFRA). This reversed the applicability of the decision by stating “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” On June 24, 1994, OSHA issued a compliance directive, again providing the religious exemption calling for the following: No citations or other enforcement actions will be taken against employers for violations of hard hat standards when their employees fail to wear hard hats due to personal religious convictions. Citations may be issued to employers of construction workers, with such convictions, for failure to instruct them about overhead hazards, as required by 29 CFR 1926.21(b)(2). The National Office shall be contacted prior to the issuance of a citation that is being considered for failure to use personal protective equipment (other than a hard hat) when it involves an employee’s refusal to use it due to a personal religious conviction. In each case described, as well as the clarifications offered by notes in the preamble, one element remains. Employees must be provided with a safe workplace. Even the religious exemption protects the employee through training. Keep this in mind whether you plan to research an existing alternative or propose a new strategy. This will make it easier for OSHA to explain why your situation is an exception. O’CONNOR is with Intec, a producer of safety manuals with training videos and software for contractors. Based in Alexandria, Va., he can be reached at (703) 628-4326, or by e-mail at joconnor@intecweb.com.

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