Demonstrating the Need for a Variance

On Feb. 15, the Occupational Safety and Health Administration (OSHA) announced that it was extending the date for temporary enforcement measures for residential construction through Sept.15, 2012. The temporary measures include priority free on-site compliance assistance, penalty reductions, extended abatement dates, measures to assure consistency, and increased outreach regarding STD 03-11-002 (Compliance Guidance for Residential Construction). STD 03-11-002 is the directive that went into effect June 16, 2011. It rescinded the previous interim enforcement policy (STD 03-00-001) on fall protection for specified residential construction activities, replacing it with a new set of guidelines for OSHA compliance officers. Under the old guidelines, residential construction workers were allowed to use alternative methods (such as slide guards or safety monitoring systems) to protect themselves from fall hazards. The new guidelines rescinded those exceptions, meaning that in most cases personal fall arrest systems, guardrails or safety nets must be used on residential jobsites — if infeasibility or greater hazard variances are not obtainable.

To say that after the new guidelines were announced there then ensued a nationwide storm of controversy among many residential contractors, contractor/builder associations and the agency itself would be an understatement. The crux of the residential contractors’ arguments against rescinding the old policy appears to balance upon the difficulty in obtaining OSHA’s permission to use “alternative fall protection measures” from an OSHA site inspector by claiming a variance to their compliance with 29 CFR 1926.501(b)(13), Residential Construction, and 1926.502(k), Fall Protection Plan. OSHA continues to defend its position that there isn’t enough “persuasive evidence” that contractor compliance with Subpart M, Fall Protection, “is infeasible or presents significant safety hazards.”