Seyfarth Synopsis: Despite Congressional direction to the contrary, OSHA just adopted a significant 500+ page final rule on industry, and only provided employers sixty days to comply!

Despite a Congressional “request” that agencies not move forward on new regulations during the transition to the Trump administration, the Occupational Safety and Health Administration recently issued a massive 513 page final rule revising and updating 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 2010. 75 Fed. Reg. 28861 (May 24, 2010). Now, without any further advance warning, OSHA has promulgated the final rule and provided only sixty days for compliance.

The final rule includes new and revised provisions addressing fixed ladders, rope descent systems, fall protection systems and criteria, and training. In addition, the final rule adds requirements on the design, performance, and use of personal fall protection systems.

In commenting on the new rule, outgoing OSHA Administrator Dr. David Michaels said that the “rule will increase workplace protection 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.” Dr. Michaels indicated that the rule should also increase the “consistency between general and construction 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 protection system that works best for them, choosing from a range of accepted options including personal fall protection systems. OSHA has permitted the use of personal fall protection systems in construction 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 protection systems and fall equipment.”

The new standard will affect 6.9 million establishments that employ 112 million employees. OSHA also found that the ladder training will apply to 5.2 million employees engaged in the construction, installation, maintenance, repair, and moving operations in general industry.

Excluded from the new rules are employees that fall outside of OSHA’s jurisdiction due to location or operational status, such as Department of Transportation (railroad and trucking) responsibilities, or those that are subject to unique industry specific fall protection standards, such as telecommunication and electric power generation, transmission, and distribution.

OSHA estimates that full compliance with this rule would prevent an estimated over 5,800 injuries and 29 fatalities per year.

Rule Timeline

The rule will be effective beginning January 17, 2017 — providing employers very little time to come into compliance! However, some of the provisions have delayed effective dates, including:

  • May 17, 2017 – train employees on fall and equipment hazards;
  • July 17, 2017 – ensure exposed workers are trained on fall hazards;
  • July 17, 2017 – ensure workers who use equipment covered by the final rule are trained;
  • November 20, 2017 – inspect and certify permanent anchorages for rope descent systems;
  • November 19, 2018 – install 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 advertising structures;
  • November 19, 2018 – ensure existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system; and
  • November 18, 2036 – replace cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet.

For employers, adoption of this rule will represent a significant challenge.

OSHA’s rule was published with a Fact Sheet and a “Questions and Answers”.

Congressional Review

The new Rule could come under review by the Trump administration or be subject to the Congressional Review Act (CRA) (5 U.S.C. §§ 801-808), in which lawmakers have 60 legislative days to overturn a regulation from the current or, in this case, previous administration. If lawmakers are not in session for a full 60 days after enactment of the new rule before adjourning their final session, the clock resets, and the new Congress is given another 60 days to act on the new rule.

The only time the CRA was used occurred in 2001, when it was used to overturn an OSHA standard on ergonomics that had been implemented in the final days of the Clinton administration.