February 14, 2006

Mr. Todd B. Logsdon
Greenebaum, Doll, & McDonald PLLC
3500 National City Tower
101 South Fifth Street
Louisville, KY 40202-3197

Dear Mr. Logsdon:

Thank you for your March 31, 2005, letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs (DEP). This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any questions not delineated within your original correspondence. You are requesting clarification, for your client, on whether the proposed procedures would meet the intent for an alternative fall protection program when guardrails are infeasible to install. Your paraphrased scenario, question, and our responses are provided below.

Scenario: Employees gain access to rooftops via roof hatches, interior stairwells that are located in the center of rooftops, and at the rooftops' edges via exterior fixed ladders, staircases, and portable extension ladders to perform post-construction. The rooftop's surface ranges from 300,000 to 1,000,000 square feet with different configurations and has a 4:12 slope. Employees are never closer than 15 feet to the roof's edge.

Question: Would a painted, large red stripe 15 feet away from the roof's edge designating a work zone, plus the following conditions be an acceptable alternative for guardrails?

• Personnel working inside of the marked area (i.e., more than 15 feet away from the roof's edge) would not be required to utilize personal fall protection.
• The work rules would require personnel working less than 15 feet from the roof's edge to employ a full fall protection program.

Response: The use of a painted line is not permitted under the standard at 29 CFR 1910.23(c), Protection of open-sided floors, platforms, and runways, which requires the use of a guardrail system to protect workers from falls of four feet or more to lower levels. Under OSHA's policy for de minimis violations, however, in place of complying with an existing standard an employer may comply with a proposed standard or amendment that clearly provides equal or greater employee protection. OSHA has proposed to revise the existing rules for Working and Walking Surfaces, including the requirement at 1910.23(c). See 55 FR 13369, April 10, 1990; republished, 68 FR 23528, May 2, 2003.

Proposed 1910.28(d)(1) would address "work...of a temporary nature, such as maintenance on roof top equipment." For such work, "[e]mployers may establish designated areas which comply with the provisions of this paragraph as an alternative to installing guardrails, where employers demonstrate that employees within the designated areas are not exposed to fall hazards." Under the proposed standard, however, a painted line cannot be used to demarcate the designated area. A designated area must be surrounded by a rope, wire or chain and supporting stanchions. For your convenience in reviewing the proposed standard in its entirely, we are enclosing a copy of the 2003 Federal Register reprint.

If an employer follows the requirements for designated areas in lieu of conventional guardrails, OSHA would consider it to be a de minimis violation. De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Under the de minimis policy, an employer may comply with a proposed standard or amendment or a consensus standard, rather than with the standard in effect at the time of the inspection, only if the employer's action clearly provides equal or greater employee protection or the employer complies with a written interpretation issued by the OSHA Regional or National Office. With de minimis violations, OSHA does not issue citations, or require abatement.

As you may know, the State of Kentucky administers its own occupational safety and health program under a plan approved and monitored by Federal OSHA. States are required to have regulations that are, at least as effective as the federal standards, although they may be more stringent. In order to obtain Kentucky's policy on this issue, you may direct your inquiry to:

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.

Sincerely,

Richard E. Fairfax, Director
Directorate of Enforcement Programs

Enclosures