In a unanimous decision on April 28, by the OSHA Review Commission, Gate Precast Company, a construction subcontractor, was found to be in violation of the fall protection standard, 29 C.F.R. § 1926.501(b)(1).1. OSHA rules apply at all job sites.
According to the ruling, a temporary employee of Gate was observed by an OSHA compliance officer helping unload planks onto an unprotected roof approximately 24 feet from the ground without fall protection. It was noted that red tape had been tied to and strung between sticks that were wedged into the gaps of abutting precast planks of concrete about six feet from the roof’s edge.
During testimony, Gate argued that the construction industry, as well as “countless ALJ and Review Commission decisions,” have recognized a “six-foot rule” that requires fall protection only when “employees [are] working six feet or less from an unprotected edge that is six feet or more above the ground.”
Gate’s defense failed, however, when the Secretary of Labor proved the employer violated § 1926.501(b)(1) by failing to ensure that its employees were “protected from … fall hazards while staging, cleaning and preparing to grout precast concrete sections on the second floor of a building.” The cited provision requires that “[e]ach employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level … be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.”
Gate Precast was assessed a penalty of $25,667 for repeat violation since “there was a Commission final order against the same employer for a substantially similar violation” at the time of the noted incident.
Penalty determination asserts that any employer who “repeatedly” violates the requirements of section 5(a) of the Occupational Safety and Health Act of 1970 may be assessed a civil penalty of not more than $70,000 for each violation. The principal factor in a penalty determination is gravity, which “is based on the number of employees exposed, duration of exposure, likelihood of injuries, and precautions against injuries.”
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