On September 18, 2018, Micah Smith and Dan Deacon of Conn Maciel Carey’s national OSHA Practice Group, presented a webinar: “Lessons Learned from OSHA’s Updated Walking/Working Surfaces Rule.”
Slips, trips and falls are among the leading causes of work-related injuries and fatalities in the U.S., and continue to pose problems for all employers. In November 2016, OSHA published its updated Walking / Working Surfaces (WWS) Standard, the regulation that governs slips, trips and fall hazards in general industry, after decades of attempts to amend the Rule. The Final Rule was intended to modernize and harmonize OSHA’s various regulations focused on fall hazards, based on advances in fall protection technologies and methods, and lessons learned over the decades.
Now, just over a year since the new WWS Rule has gone into effect, many questions remain for employers with respect to modifying workplace practices and physical installations, especially those related to fall protection, fixed ladders, and scaffolding.
Participants in this webinar learned:
Kate M. McMahon and Eric J. Conn
On January 17, 2017, OSHA’s new Walking-Working Surfaces Rule took effect, updating OSHA regulations that have been in place for nearly a half century. OSHA’s new rule, commonly referred to as the “Slips, Trips and Falls” rule, actually revises and updates two historic OSHA standards — the Walking-Working Surfaces regulations at Subpart D and the Personal Fall Protection regulations at Subpart I of OSHA’s General Industry Standards (29 C.F.R. Part 1910). Begun in 1990, it took OSHA all of 27-years – longer than it takes the Agency to promulgate its comprehensive health standards, which is saying quite a bit. But just shy of two months to the end of the Obama Administration, the rule was promulgated, and became effective and enforceable three days prior to the Inauguration of Pres. Donald Trump.
While the new rule may fall prey to to efforts by the Trump Administration to stay and roll back those rules promulgated in the 11th hour by the Obama Administration — of which this certainly is one — it seems to have avoided the full scale assault by industry legal challenges typical of new OSHA rules. The period to file legal challenges to the rule ended two weeks ago, and a survey of court filings indicates that only two parties have filed challenges to the rule, and these challenges are narrowly focused on a few discreet provisions of the rule, relating to the 300-foot limit on the use of rope descents and the restrictions on chimney sweeps who climb carrying their hook ladders. Thus, even if these challenges are upheld, the bulk of OSHA’s revised Walking Working Surfaces rule will remain secure and in place.
Significant Provisions of the New Standard
It is not surprising that the new rule by and large escaped industry legal challenge. For the most part, it incorporates existing advances in technology and current national consensus standards and/or industry best practices already in place in a wide swath of impacted industries into the regulatory structure. Further, in particular in the area of personal fall protection, the new rule adds flexibility to the old requirements by expanding allowable methods for compliance. For instance, the new rule allows employers to rely on fall protection systems rather than relying exclusively on guardrails and physical barriers in many situations.
However, the new rule does impose some new requirements it is important to be aware of and understand. Continue reading
By Eric J. Conn and Kathryn M. McMahon
In what can only be viewed as another example of OSHA’s inability to effectively advance its rulemaking agenda, OSHA recently withdrew from the Office of Management and Budget (OMB) review of its quarter-century-in-the-making draft Final Rule to update existing regulations aimed at preventing slips, trips and falls in the workplace. OMB’s Office of Information and Regulatory Affairs (OIRA), the White House gatekeeper for rules with significant economic impact, reported in late December that OSHA withdrew the rule from OIRA pending further consideration by the Agency. Unless a swift turnabout occurs and the rule is resubmitted to OIRA in the very near term, the rule will not be promulgated before the end of the Obama Administration.
The Walking-Working Surfaces and Personal Fall Protection Systems rule proposal, colloquially referred to as the “slips, trips and falls rule” proposal, was first issued in 1990. That is not a typo. The proposal has languished at OSHA for more than twenty-five years. Eventually, based at least in part on public comments submitted in response to the 1990 proposal, OSHA published a notice to reopen the rulemaking for a second round of public comment in May 2003. However, because advancements in fall protection technology had far outpaced OSHA’s rulemaking process, the Agency concluded that:
“the existing proposal was out of date and did not reflect current industry practice or technology.”
So more delays.
In May of 2010, OSHA issued a reiteration of the proposal, which, according to Agency officials, “reflected current information and increased consistency” with other OSHA standards. OSHA held administrative hearings in January of 2011 on the revised proposal, and this time, seemed as if it was actually making headway and would get the rule across the finish line. Continue reading