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An administrative law judge of the Occupational Safety and Health Review Commission affirmed citations issued against a Missouri roofing contractor for failing to use fall protection, but reduced the penalties proposed by federal regulators.
In October 2016, a U.S. Occupational Safety and Health Administration inspector visited a worksite of Wentzville, Missouri-based Auchly Roofing Inc. and observed employees working on the roof without fall protection, according to commission documents.
OSHA issued two serious citations and proposed penalties totaling $7,482. The company contested the citations, arguing that the violations, if they did exist, were de minimis in nature, and that compliance with the fall protection standards cited by OSHA presented a greater hazard to the employees.
The cited OSHA standard requires one of three forms of fall protection — personal fall arrest systems, safety nets or guardrails — none of which were used by the contractor’s employees, which the company conceded during a July 2017 trial, according to the documents.
“Thus, on the face of it, (Auchly Roofing) violated the terms of the standard,” the administrative law judge said.
While the standard provides employers an opportunity to demonstrate that using the listed forms of fall protection would create a greater hazard or would be infeasible to implement, employers must overcome the presumption that the listed fall protection systems are both feasible and will not create a greater hazard in the context of residential construction activities.
Auchly Roofing “failed to prove the use of conventional fall protection was infeasible,” the judge said in affirming the citation. “Although (Auchly Roofing) pointed out problems with the implementation of conventional fall protection systems such as tripping hazards, the court finds these do not rise to the level of infeasibility.”
The company also failed to prove compliance with the standard created a greater hazard, the judge said.
“The court fails to see how tripping when attached to a fall arrest system, which is designed to prevent a fall to the ground below, creates a greater hazard than not wearing a harness at all,” the judge said.
The company had five employees at the time of the inspection, including the co-owners Tony and Brent Auchly, which led OSHA to assess a 70% reduction to all gravity-based penalties — a typical practice for small employers that the judge agreed with.
However, the judge also determined that penalty reductions for the company’s good faith and prior history were also appropriate — even though the employer did not comply with the standard — because it did have processes in place for fall protection both from the roof and while using the ladders and the company had not had any violations in 20 years. The judge issued a combined penalty of $2,494.
The administrative law judge’s decision became a final order of the commission on Wednesday.
An employer spokesperson could not be immediately reached for comment.
An administrative law judge of the Occupational Safety and Health Review Commission affirmed in part and vacated in part citations against a residential roofing contractor who claimed the citations were issued with vindictive motivation and with an improperly executed warrant.