By Beeta Lashkari, Mark Ishu, and Kimberly Richardson

On May 1, 2023, OSHA announced the launch of a new National Emphasis Program (“NEP”) focused on preventing fall hazards in general industry and construction, the leading cause of fatal workplace injuries and the violation that the agency cites most frequently in construction industry inspections.  The Falls NEP was signed April 24, 2023, and took effect the same day as OSHA’s announcement, on May 1, 2023.

It may have been that the Falls NEP was a long time coming.  Per OSHA’s announcement, the NEP is based on historical Bureau of Labor Statistics (“BLS”) data and OSHA enforcement history.  For example, data from BLS shows that, of the 5,190 fatal workplace injuries in 2021, 680 were associated with falls from elevations, about 13 percent of all deaths.  Additionally, data from OSHA’s annual enforcement report indicates that, of 24,333 total inspections in 2021, 7,954 had an emphasis on falls, or about 33% of all inspections.

With regard to the new Falls NEP, Assistant Secretary of Labor for OSHA Doug Parker said:

“Considering that falls remain the leading cause of fatalities and serious injuries in all industries, the agency has determined that an increase in enforcement and outreach activities is warranted….  This national emphasis program aligns all of OSHA’s fall protection resources to combat one of the most preventable and significant causes of workplace fatalities.”

OSHA’s goal of significantly reducing or eliminating unprotected worker exposures to fall-related hazards in all industries that can result in serious injuries and deaths will be accomplished by a combination of enforcement (which includes hazard-based inspection targeting and optional locally-generated programmed targeting in construction as outlined in the Falls NEP’s Appendix A), outreach to employers, and compliance assistance.

Who is Covered by the Falls NEP?

The Falls NEP is meant to focus on reducing or eliminating fall-related injuries and fatalities for people working at heights in all industries.  Although OSHA anticipates that most inspections under the Falls NEP will occur in construction because the majority of fatal falls to lower levels each year occur on construction worksites, it is important to note that the Falls NEP is not limited to construction.

Indeed, and importantly, the Falls NEP provides that Compliance Safety and Health Officers (“CSHO”) are authorized to initiate inspections under the scope of the NEP whenever they observe someone working at heights, which may occur during the CSHO’s normal work-day travel or while en route to, from, or during, other OSHA inspections.  If a CSHO believes that an inspection is not warranted after entering the site and observing work activities, the CSHO will instead conduct an outreach activity on fall protection and exit the site.

Additionally, as related to existing inspections, CSHOs are instructed to observe the surrounding area for potential fall exposures and conduct an inspection under the Falls NEP if any are present during all programmed safety and health inspections (such as national, regional or local emphasis programs), and during all un-programmed inspections (incidents, complaints, and referrals).

The NEP provides that all construction inspections related to falls will be conducted pursuant to the Falls NEP.  For non-construction inspections, the Falls NEP will target the following activities:

1. Roof top mechanical work/maintenance
2. Utility line work/maintenance (electrical, cable)
3. Arborist/tree trimming
4. Holiday light installation
5. Road sign maintenance/billboards
6. Power washing buildings (not connected to painting)
7. Gutter cleaning
8. Chimney cleaning
9. Window cleaning
10. Communication Towers

Additionally, as for other non-construction work activities where a worker is observed working at height, the Falls NEP instructs that an inspection may be initiated upon approval by OSHA Area Office (“AO”) management.

NOTE: Interestingly, this NEP does not include the usual appendix containing a list of targeted industries by NAICS code.  Instead, per OSHA, the NEP is a “hazard-based inspection targeting” system, with an appendix that is provided as optional guidance for developing a targeted system to inspect local construction sites.  To that end, OSHA might be testing the waters a bit on the Fourth Amendment, which requires OSHA to demonstrate administrative probable cause that a violative condition exists before conducting an inspection.  This is because case law makes clear that, to comply with the Fourth Amendment, an OSHA policy for programmed inspections must use “neutral criteria” in the selection of worksites for inspection.  OSHA does not have discretion in deciding who or where it inspects; the more discretion OSHA has in the decision to inspect a particular worksite under an NEP or other similar program, the more problematic it becomes on Fourth Amendment grounds.

Here, the Falls NEP seems to include some language to suggest that OSHA has discretion in deciding who or where to inspect.  For example, it states that “CSHOs are authorized to initiate inspections under the scope of [the Falls] NEP whenever they observe someone working at heights.” (emphasis added).  Additionally, the Falls NEP states, “If the CSHO cannot contact the Area Office (e.g., no cellular phone service or land-line and when no supervisors are immediately available) to get authorization, they shall initiate an immediate inspection provided this activity will not interfere with any higher priority inspections or assignments. In these cases, the CSHO will give highest priority to preventing further employee exposures where fall hazards were observed.” (emphasis added).  The language in these examples could suggest that OSHA is “picking and choosing,” which again, arguably leaves too much discretion to OSHA.

All to say, it may be that OSHA is taking a calculated risk to fulfill its commitment to use every tool in the agency’s toolbox to ramp up enforcement.  Indeed, we have already seen OSHA expand SVEP, the instance-by-instance citation policy, and its authority under the whistleblower protection program.  This might just be another example of how OSHA is accomplishing its significant enforcement initiatives.

When Will Programmed Inspections Under the Falls NEP Begin?

Although the Falls NEP took effect May 1, 2023, there is a 90-day outreach period.  So, programmed inspections under the Falls NEP should commence on or around July 30, 2023.

When Will the Falls NEP Expire?

There is no expiration date in the Falls NEP.  However, to assess its effectiveness, OSHA will review the NEP within six months of issuance to determine whether the policy will be continued, and take any necessary steps to assure its replacement with a cleared instruction.

What is the Scope of a Falls NEP Inspection?

The scope of inspections initiated under the Falls NEP will be in accordance with OSHA’s Field Operations Manual (“FOM”) and should normally be limited to evaluating worker exposure to hazards associated with falls.  However, the Falls NEP informs that a CSHO may expand the scope of an inspection under the NEP if there is evidence from injury and illness records, plain view hazards, or employee interviews of other potential safety and health hazards or violations at the worksite.

At the end of each NEP inspection, the CSHO/AO will provide the employer with information concerning OSHA fall protection requirements and protective measures that should be implemented.  For example, the CSHO/AO may give the employer the website address for OSHA’s fall prevention standards and related outreach materials or provide copies of OSHA publications.

Does the Falls NEP Have Any Effect on State OSH Plans?

Yes.  In short, State OSH Plans will have to adopt the Falls NEP, or have something at least as effective.  Specifically, within 60 days of the effective date of the Falls NEP (so, by Friday, June 30, 2023), State OSH Plans must submit a notice of intent indicating whether the State OSH Plan will adopt or already has in place policies and procedures that are identical to or at least as effective as the federal program.

State OSH Plan adoption, either identical or different, must be accomplished within six months.

• If the State OSH Plan adopts identically, it must provide the date of adoption to OSHA, due within 60 days of adoption.
• If the State OSH Plan adopts or maintains a program that differs from the Falls NEP, it must identify the differences and make its policy publicly available (e.g., by posting its policy on its website and providing the link to OSHA or submitting an electronic copy to OSHA with information on how the public may obtain a copy). This must occur within 60 days of the date of adoption.

What is the Effect on Similar Regional/Local Emphasis Programs?

The Falls NEP instructs that Regional Emphasis Programs (“REP) and Local Emphasis Programs (“LEP”) that are substantially similar to the Falls NEP should be cancelled, with the phasing out of those REPs/LEPs to occur following the 90-day outreach period after publication of Falls NEP.  However, OSHA does mention that those substantially similar REPs/LEPs that have other elements in them can remain in effect.