Subpart L of the OSHA Construction standard (29 CFR 1926.450 et. seq.) the Scaffold section, contains a section dealing specifically with aerial lifts (29 CFR 1926.453). The standard itself isn’t confusing on its own, but two recent OSHA interpretive letters have created confusion, the latest one being August 21 of 2011.

Subpart L requires that employees be tied off the entire time they are working in an aerial lift (29 CFR 1926.453(b)(2)(v)). The standard states: “A body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.” The sentence is followed by a “Note to paragraph (b)(2)(v): As of January 1, 1998, subpart M of this part (§1926.502(d) provides that body belts are not acceptable as part of a personal fall arrest system. The use of a body belt in a tethering system or in a restraint system is acceptable and is regulated under §1926.502(e).”

So Subpart L does not specifically require “fall protection” when working in an aerial lift. It allows the use of a body belt and lanyard when used as “fall restraint.” However, if the body belt and lanyard are not sufficient to restrain the employee from being thrown from, or from physically being able to climb out of or fall over the top rail of the aerial lift, and the lift is six feet or more above a lower level, now the issue switches to fall protection.

Subpart M (§ 1926.500) is the fall protection section, and that section requires that anytime an employee is working at heights in excess of six feet they must be “protected from falling by the use of guardrail systems, safety net systems, or personal fall protection systems.” (§ 1926.501(b)(2)). Subpart M further clarifies that lanyards, when used as part of a personal fall arrest system, connected to an anchorage point shall “be rigged such that an employee can neither free fall more than 6 feet (1.8 m), nor contact any lower level.”

So if an employee in an aerial lift is wearing a body belt, and connected with a short lanyard that would completely restrain him or her from being ejected over the rail of the aerial lift, both Subpart L and Subpart M will have been complied with.

The problem is if the employee is that closely tethered, then they will also have no mobility to move around the aerial lift basket and hence be very limited in the work they will be able to perform from the aerial lift. So the need for mobility creates the dilemma.

On January 14, 2009, OSHA issued a letter of interpretation based on a question received from the public that asked whether a manufacturer’s requirement that a particular six foot self-absorbing lanyard have a minimum free fall distance of 18½ feet preclude the use of such lanyard as fall protection when working from an aerial lift.  OSHA’s response was that because Subpart L requires that employees be always tied off when working from an aerial lift, and Subpart M requires that they be protected anytime they are exposed to a fall of six feet or more, and because a lift is not always at or above 18½ feet, the use of the lanyard in question would be not provide adequate protection when the lift was higher than six feet, but lower than 18½ feet (The 18½ foot calculation takes into consideration the 3’6″ stretch caused by the shock-absorbing action, as well as a 3 foot safety factor recommended by the manufacturer).  This left quite a dilemma for the type of fall protection that was acceptable to use in an aerial lift given that most lanyards in construction are of the six-foot, self-absorbing design.

Most self-retracting lifelines (SRL’s) while providing mobility, and limiting a fall distance to no more than two feet, would work, except for the fact that manufacturers were requiring them to be used with an attachment point at or above the wearers dorsal dee ring. Obviously there is no attachment point in an aerial lift that meets that requirement. So you were limited to some type of tether that would allow some limited mobility so employees could work, yet not so much that they could free fall more than six feet.

This was further complicated by the requirement in Subpart M that the fall protection system “limit [the] maximum fall arresting force on an employee to 1,800 pounds (8 Kn) when used with a body harness.”  By way of example, a 180 pound worker with 20 pounds of tools, free falling six feet would experience fall arrest forces of approximately 2400 pounds.  Thus in order to be in compliance with the rule, six foot lanyards had to provide shock absorption that would limit those impact forces to no more than 1800 pounds, which six foot self-absorbing lanyards are designed to do.  So if you used a straight, nylon lanyard, with no shock absorbing capabilities, to allow maximum movement within the basket, if the employee were to be thrown from the basket, a resulting free fall of six feet would exceed the maximum fall arresting force on the employee.

The 2009 interpretive letter resulted in inquiries from OSHA’s own regional and area offices as well as from the general public asking if the 2009 letter in fact banned the six foot self-absorbing lanyards. On August 22 of 2011, in an attempt to “help avoid any confusion on the issue, DOC (Directorate of Construction) is rescinding the January 2009 letter.”

In order to understand how this rescission might “help avoid any confusion” one must understand the concept of what OSHA considers “performance standards.”  The fall protection standard of Subpart M is referred to by OSHA as a performance standard, meaning that OSHA doesn’t care, nor endorse, HOW you comply with the standard, only that you do. The problem that OSHA has now created is that the August 22 letter states that §1926.502(d) “does not require employers to comply with manufacturer’s instructions when using personal fall arrest systems.” This statement runs contrary to OSHA”s long-standing interpretation that if a manufacturer had a requirement that was more stringent than OSHA’s it had to be followed. Did OSHA now just do away with that interpretation?

It seemed to me that there is more confusion after the August 22nd interpretive letter than before. With the January 2009 letter, we knew two things: six foot self-absorbing lanyards may not provide adequate fall protection when working in an aerial lift when the lift is at heights less than 18 ½ feet; and that some fall protection was required anytime the aerial lift was six feet or more of the ground.

OSHA’s new letter doesn’t clarify anything, rather, than saying that you don’t have to follow a manufacturer’s recommendations when using fall protection systems.  So if a manufacturer recommends that a SRL be attached only above the dorsal dee ring, is it OSHA’s position now that you can attach it below the waist and be in compliance?  That would seem to be a reasonable interpretation of the new interpretive letter.

If so, that makes things easier, because clearly ANY SRL would provide all the fall protection you could ever need when working from an aerial lift because they always limit the free fell to two feet or less (usually much less).  I personally believe that an SRL is the best thing to use in an aerial lift, and have been advising clients of that, and teaching that in my OSHA classes since the 2009 letter of interpretation.  However, I cautioned them to get a technical bulletin from the manufacturer that would indicate that the particular model they were using had been certified by the manufacture to be used with an attachment point between the waist and knees, where most attachment points are in aerial lifts.

I still stand behind this advice.  An SRL will give employees all the mobility they need, and will work at any height over six feet as long as the employee remains on the floor of the lift basket as is required by the standard.  I have seen technical bulletins, at least from Miller Fall Protection, where they list the models that they have tested and certified for aerial lift attachment points where they are tested for attachment at points well below the dorsal dee ring.  I am assuming the other manufacturers have similar technical bulletins.  So they are out there.  But I don’t think that now it is even necessary to have a technical bulletin under this new interpretive letter.  The problem is that SRL’s are pricey, costing anywhere between $100 and $600 depending on manufacturer and design.  Shock absorbing lanyards are all less than $100.

If you don’t want the expense of an SRL and you are going to have employees working at elevations greater than 18½ feet you could purchase body harnesses with side dee rings (normally used for positioning) and tether your employees to the lift with a restraint device, maybe even a chain rebar assembly, short enough to prevent them from being ejected, then once the aerial lift is over 18½ feet off the ground, connect a six foot self-absorbing lanyard to their dorsal dee ring, and once that is connected, they could disconnect the restraint lanyard and have the freedom of movement that the six foot lanyard allows, and avoid the expense of an SRL.  Of course, on descent, once the lift falls below 18½ feet, your employees would have to be trained to reconnect the restraint lanyard until the lift returned to the ground.

But if you are working between six feet and 18½ feet, unless you want to use a SRL, you will either significantly reduce the mobility of your employees (by using perhaps a back-biter cinched down to 4 feet or less for fall protection, or a even shorter tether for fall restraint) or risk having to prove to OSHA how your six foot self-absorbing lanyard will allow your employee to free-fall no more than six feet, and limit the impact forces to less than 1800 pounds before coming into contact with the lower level.   Anyone familiar with calculating fall distances knows that answer will be 18½ feet.

Please comment if you have a different opinion or if you think this logic is flawed.

In a time where construction unemployment has hit an all time high, and where the economy has driven the prices for construction projects down because so many contractors are bidding for fewer projects, OSHA’s new residential fall protection rules are adding confusion to the already devastated residential construction market.  Residential contractors are now struggling with what they need to do to comply with the recent recession of a 16 year old exemption that basically held that conventional fall protection in residential construction was for the most part, infeasible, and therefore contractors could “shoot from the hip” when protecting employees while performing residential construction.

Not any more.  Effective June 16, 2011, OSHA rescinded it’s former 1995 fall protection directive and reverted back to the original OSHA standard that requires that all trades working in residential construction provide fall protection for any workers that are exposed to falls in excess of six feet by conventional fall protection measures; personal fall arrest systems (full–body harnesses and attachment points), guardrail systems or safety net systems.  The only way around utilizing these systems after the June 16 effective date is to have a written fall protection plan.  The new rule is in a phase in stage until September 16th at which time the rule will be in full effect.

An alternative written fall protection plan is no small accomplishment.  It must contain several critical elements; it must prove that conventional fall protection is impossible; it must be site specific to a particular job; it must be developed by what OSHA defines as a “qualified person”; it must we implemented on site by a “competent person”; Any workers working under the purview of the plan must have specialized training, which must be “certified” in writing by the employer; and the plan must be on site the entire time the plan is in effect.

Perhaps most onerous is the requirement that the plan must prove that one of the three conventional means of fall protection are impossible to utilize.  The OSH Act states that an alternative fall protection plan is only permissible if the employer can prove that it is infeasible, or creates a greater hazard to the workers, than utilizing one of the conventional fall protection methods.  In defining “infeasible” OSHA says it “means that is it impossible to perform the construction work using a conventional fall protection system [i.e., guardrail system, safety net system, or personal fall arrest system] or that it is technologically impossible to use any one of these systems to provide fall protection.”   29 CFR 1926.500.

As technology has improved, there are guardrail systems and safety net systems that have been designed and developed for use, especially on new residential construction, which basically make those systems completely feasible for protecting workers . . . at a cost.  That is the catch.  Many of the guardrail systems that are currently on the market, can cost upwards of $3,000-$5,000 for a 2000 square foot house.  Compliance with the new rules will basically add $2/sq foot to the construction costs of a new home.  An increase that is crippling in the current housing market where the prices of existing homes has dropped to a square foot price far below the costs of new construction without this new burden.

The bottom line is, fall protection citations are generally willful citations of a serious magnitude, carrying potential fines of up to $7,000 per violation, twice the cost of good guardrail or safety net systems.  A call to the SCATS office in Reno, Nevada confirmed that the new rules are going to be strictly enforced in Nevada.  “With the current technology available, there is no reason to not provide conventional fall protection to employees, other than employers just don’t want to comply,” according to a spokesman.  He indicated that after September 16th, if an inspection is made and conventional fall protection is not provided, citations will be issued.