Login Register Subscribe
Current Issue

Slips, trips and falls rule likely to stand under Trump

Reprints

The U.S. Occupational Safety and Health Administration’s long-awaited slips, trips and falls rule is relatively uncontroversial and employer-friendly, making it less vulnerable to reversal under the incoming administration than other agency rules, experts say. 

OSHA’s slips, trips and falls rule takes direct aim at falls from heights and on the same level — a working surface.  In the workplace, nearly 600 people died and 47,000 were injured in 2013 due to these hazards, according to the National Safety Council in Itasca, Illinois.

OSHA estimates the rule, which affects a wide range of workers from painters to warehouse workers, will prevent 29 fatalities and 5,842 lost-workday injuries every year. The rule has an estimated net benefit of $309.5 million — $614.5 million in benefits minus $305.0 million in costs — according to the agency. 

The final rule adopted last week updates OSHA’s general industry Walking-Working Surfaces standards specific to slips, trips and falls hazards and features a new section under the general industry Personal Protective Equipment standards that establishes employer requirements for using personal fall protection systems. 

It benefits employers by providing greater flexibility in choosing a fall protection system by, for example, eliminating the existing mandate to use guardrails as a primary fall protection method and allowing employers to choose from accepted fall protection systems they believe will work best in a particular situation, according to OSHA. 

“This rule really does ensure the ability to use fall protection rather than just guardrails,” said Carla Gunnin, an Atlanta-based principal and co-leader of Jackson Lewis P.C.'s workplace safety and health practice group.

The agency said it aligned fall protection requirements for general industry with those for construction, easing compliance for employers who perform both types of activities. For example, the final rule replaces the outdated general industry scaffold standards with a requirement that employers comply with OSHA’s construction scaffold standards.

Most of the rule will become effective 60 days after publication in the Federal Register, which happened on Friday, but employers will also benefit from lengthy compliance timeframes for certain elements, experts say. For example, employers will have 20 years to replace cages and wells used as fall protection with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet.

The 20-year timeframe is “definitely odd, but it’s not bad for employers,” Ms. Gunnin said. 

The regulation is one of several OSHA rules expected to be pushed out by President Barack Obama’s administration in its waning days, but it falls within the window of the Congressional Review Act. The statute gives the legislature 60 legislative days to disapprove of a regulation, but it is rarely invoked because it requires either presidential approval to enact a resolution of disapproval or a two-thirds supermajority vote to overcome a presidential veto.

President-elect Donald Trump and the Republican Congress could seek to revoke the rule as part of their pledge to eliminate unnecessary regulations, but workplace safety experts do not expect the regulation to be a target because of its benefits to employers and the fact that OSHA’s electronic record-keeping and silica rules are much more contentious and likely to be targeted.

“By and large, it’s a rule that employers have not been opposed to,” Ms. Gunnin said. “I’ve never viewed this one as an extremely controversial rule.” 

“When it went through the notice and comment rule-making, there wasn’t a whole lot of general opposition to it,” said John Martin, a Washington-based shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. “It just seemed like it was giving a more multifaceted approach to fall protection.”