An administrative law judge of the Occupational Safety and Health Review Commission affirmed a serious citation issued against a plumbing company for exposing employees to fall hazards, but lowered the assessed penalty.

A compliance safety and health officer inspected an Englewood, Colorado, worksite in October 2016 and found two Ovation Plumbing Inc. employees crossing through a set of guardrails onto an unprotected balcony, according to review commission documents. The officer concluded the company committed a serious violation of the U.S. Occupational Safety and Health Administration’s fall protection standard.

Ovation Plumbing contested the citation, but did not dispute that its employees were exposed to the fall hazard, that the terms of the cited standard were violated and that the standard was applicable. But the dispute centered on whether an exception to the fall standard – allowed when employees are conducting inspections, investigations or assessments prior to the beginning of construction or after it has been completed – applied on the day of the inspection. Also in dispute was whether the company had knowledge of the violation and whether it was the product of unpreventable employee misconduct.

Although one of the employees was engaged in inspection or assessment when the two employees entered the balcony, the judge determined the exception did not apply because the inspection did not occur prior to the actual start of construction or after all construction had been completed, according to the ruling.

“Nor does this situation fit into the underlying rationale for the exception in the first place – the exposure was entirely unnecessary,” the judge stated. “Unlike a roof repair, wherein an onsite assessment is necessary to ascertain required materials and anchor point locations at the outset, fall protection was already installed on the balcony, just incorrectly for the purposes of (Ovation’s) necessary work on the balcony. In other words, we are not talking about employees that did not use fall protection because it was more hazardous or unduly burdensome to install. Rather, we are talking about employees circumventing existing fall protection because it was incorrectly placed and inconvenient.”

The judge also determined that the company had constructive knowledge of the violation and that it failed to prove the affirmative defense of unpreventable employee misconduct.

Ovation “failed to implement effective work rules designed to prevent the violation,” the judge stated.

But the judge lowered the assessed penalty from $4,811 to $1,000 after finding that the short duration of the exposure, coupled with a low likelihood of injury, warranted a penalty reduction, according to the ruling.

The administrative law judge’s decision became a final order of the review commission on Tuesday.

An attorney for the company could not be immediately reached for comment.