By the actions of the Federal Occupational Safety and Health Administration (Federal OSHA), today the Arizona-specific residential fall protection statute has been repealed. Effective tomorrow, February 7, 2015, Arizona employers will be required to comply with Federal OSHA standards found in subpart M, 29 C.F.R. 1926.500. More specifically, residential contractors will now be required to ensure that each employee engaged in residential construction activities six feet or more above the ground or lower levels will be protected from a fall with some type of conventional fall protection.
Legislative History
In March 2012, SB 1441, also known as A.R.S. 23-492, was signed into law requiring conventional fall protection in residential construction when employees were exposed to heights of 15 feet or greater. The statute also included an exception where implementation of conventional fall protection was infeasible or created a greater hazard.
As a result of mounting pressures, including those from Federal OSHA, a new bill made its way through the Arizona Legislature. That bill, SB 1307, signed into law on April 22, 2014, made minor revisions to A.R.S. 23-492. It did not amend the 15-foot residential fall protection trigger height to the six-foot height required by Federal OSHA. However, SB 1307 contained Section 7 entitled “Conditional Repeal.” This critical section stated that A.R.S. 23-492 could be repealed if OSHA published in the Federal Register a final decision rejecting changes to the State OSHA Plan. The rejection in this case involves the state statute, 23-492, which permits the use of conventional fall protection at 15 feet or greater, instead of the 6 feet as called for in the Federal OSHA standards at 29 C.F.R. 1926.501(b)(13).
Federal OSHA Action Today
Federal OSHA sought to invoke the automatic repeal of A.R.S. 23-492 by publishing its rejection of the state-initiated plan change in the Federal Register. In today’s Federal Register publication, OSHA states, in part: “[p]ursuant to the procedures set forth in 29 C.F.R. 1953.6(e)…, the Assistant Secretary has made a final decision to reject the Arizona State Plan’s statute for fall protection in residential construction. [T]he Assistant Secretary rejects the changes to Arizona’s State Plan described by…23-492.01…” Federal OSHA goes on to state: “the expected effect of the Assistant Secretary’s decision to reject Arizona’s statute covering fall protection in residential construction is that ADOSH will revert to enforcing 29 C.F.R. part 1926, subpart M."
On a side note, as for OSHA’s decision on reconsideration of the State Plan status (i.e. whether to assume OSHA jurisdiction in the state of Arizona) Federal OSHA decided to defer that decision to allow ADOSH time to implement and begin enforcement of Subpart M. Assuming ADOSH properly enforces the residential fall protection provisions of 29 C.F.R. 1926, the State of Arizona will probably retain its 18(e) final approval status.
ICA Enforcement Announcement
In an announcement released to the public today, the Industrial Commission of Arizona stated that ADOSH will require Arizona employers, effective 12:01 a.m., Saturday, February 7, 2015, to immediately comply with all provisions of the Federal OSHA residential fall protection standards found in 29 C.F.R. 1926.501.
The effect of this action today means that tomorrow morning, ADOSH compliance officers will immediately begin to enforce the Federal OSHA standards in the residential construction industry. More specifically, all residential construction industry employers will have to immediately come into compliance with the Federal OSHA fall protection standards, including but not limited to 29 C.F.R. 1926.501(b)(13) which requires employees engaged in residential construction activities six feet or more above ground level or lower levels to be protected from fall by conventional fall protection means. Additionally, if the employer does not believe that this is possible, it is the employer’s obligation to demonstrate that it is infeasible or creates a greater hazard to use conventional fall protection. Federal OSHA has been very firm in its belief that it is a rare case when conventional fall protection is infeasible. Thus, all employers who have been previously complying with the provisions of A.R.S. 23-492 must now provide fall protection for employees at the trigger height of six feet instead of 15 feet.
