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Builder’s repeat citation over fall protection hazards affirmed

Builder’s repeat citation over fall protection hazards affirmed

An administrative law judge of the Occupational Safety and Health Review Commission affirmed a repeat citation related to fall protection hazards and an $11,000 penalty against an employer engaged in steel erection activities.

Lake Building Products Inc. was erecting a two-story steel structure in Akron, Ohio, when a compliance officer with the U.S. Occupational Safety and Health Administration saw two employees working without fall protection from the second story of the structure, according to review commission documents in Secretary of Labor v. Lake Building Products Inc. The officer commenced a safety inspection of the worksite that resulted in a one-item serious citation, a one-item repeat citation and a penalty notification to Lake Building for violation of OSHA’s construction steel erection standard, which the company contested.

The serious citation was severed and settled, but the repeat citation, which alleged a violation of the fall protection requirements of the steel erection standard, proceeded to a hearing in October 2017. The secretary contended that the employees were engaged in steel erection activities on the structure’s upper level at about 28 feet above ground and that the employees, who wore personal fall arrest harnesses, were not tied off to an anchor point in violation of the fall protection requirements.

In response, the company argued that at the time of the inspection, it was using a crane to hoist bundles of metal decking onto the structure’s roof and that its employees located on the structure’s upper level were engaged in landing the metal decking bundles on a structural beam and unhooking the crane’s rigging material from the bundles. This meant the employees were working as connectors and were therefore covered by the connector exception to the protection requirements, according to Lake Building.

The plain text and meaning of the standard requires employees to be engaged in both “placing and connecting” structural members and/or components while hoisting equipment is in use to meet the definition of connector and the employees in this case were only engaged in placing, not connecting, the metal decking bundles, the administrative law judge determined.   

“Therefore, the employees were not engaged in the required activities to be connectors and the connector exception did not apply,” the law judge stated.

The cited standard requires the use of fall protection when employees are working 15 feet above a lower surface, the law judge noted. The company did not dispute that the two employees were not using fall protection while working on the structure’s upper level 28 feet above ground, but argued its employees were not tied off because it would have been a greater hazard for an employee to be tied off while using a crane to land decking materials and that an employee’s ability to move is limited when tied off, restricting the employee’s ability to move out of the way of an incoming load.

An expert for the company and a foreman stated their beliefs that it was safer for an ironworker, working on a steel structure with hoisting equipment, to work without being tied off to an anchor point, so that the employee may quickly move out of the way of an incoming load. But the witnesses did not present evidence to support this belief and an employer cannot simply substitute its own judgment for the requirements of the standard, the law judge noted.

“There is no dispute that a fall from over 15 feet can result in serious injury or death,” the law judge stated in rejecting the argument. Lake Building “did not prove that the use of fall protection presented a greater hazard than not using fall protection.”

The law judge also determined that the violation was rightly classified as a repeat based on two prior citations, which themselves were repeat violations of the steel erection standard fall protection requirements that went uncontested by Lake Building. A repeat violation carries a maximum penalty of $70,000, but the violation’s gravity was assessed as moderate based on a rating of high severity and lesser probability. However, the proposed penalty was increased by 10% because of the prior repeat citations and the law judge affirmed the penalty.

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

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




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