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An electrical contractor failed to show that the installation of solar panels on a hanger qualified as “roofing work,” which would have less stringent fall protection standards for employees.
In Bergelectric Corp. v. Secretary of Labor, a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco unanimously denied a petition to review an Occupational Safety and Review Commission’s final order which affirmed a U.S. Occupational Safety and Health Administration citation for fall protection standards violations.
On Feb. 24, 2016, Los Angeles-based electrical contractor Bergelectric Corp. was installing solar panels on the roof of a hanger at the Marine Corps Air Station Miramar in San Diego. The workers said they were using warning lines and a safety monitor to comply with fall protection obligations, and said they would use personal fall arrest systems if they were required to move outside warning lines. During a two-day inspection of the worksite, an OSHA compliance officer said he observed no employees using personal fall arrest systems, saw no guardrails in place and no safety nets. As a result, he issued three serious violations of Occupational Safety and Health Act fall protection standards and assessed a $3,000 fine.
An administrative law judge found that the OSH Act’s principal fall standard applied because the installation of solar panels did not qualify as performing “roofing work” and that Bergelectric violated the standard by failing to use personal fall arrest systems, safety nets or guardrails. Bergelectric appealed to the commission, which declined to review the administrative judge’s decision. The electrical contractor then appealed to the 9th U.S. Circuit Court of Appeals, which affirmed the decision.
Although Bergelectric argued that the installation of solar panels was governed by the less stringent requirements for protecting employees performing roofing work on low-sloped roofs, rather than the stricter standard applied to unprotected sides and edges at elevations, the appellate court held that the installation of solar panels is not referenced in OSHA’s definition of “roofing work.”
The appellate court held that the plain language makes clear that “roofing work” does not extend to all materials and equipment that could be applied to a roof, but rather “roofing” materials and equipment. The court held that the electrical company’s activities on the hanger had no connection to roofing, and that the less stringent roofing standards were inapplicable.
The appellate court also held that substantial evidence supported the administrative judge’s decision that Bergelectric did not comply with OSHA standards to protect workers from unprotected sides and edges at elevations, noting that the company’s solar panel installers were not wearing personal fall protection systems and were not provided with guardrails or safety nets. The court also reviewed photos of the hanger which showed potential for inadvertent tripping and stumbling, which subjected them to the danger of falling.
The appellate court, therefore, denied Bergelectric’s petition for review of the commission’s final order.
Bergelectric’s attorney did not immediately respond to a request for comment.
Federal workplace safety regulators have cited a Florida roofing contractor for exposing employees to fall hazards and proposed $149,662 in fines.