September 28, 2006

Mr. Kyle Yancey
Attorney At Law
5855 Mableton Parkway, SW
Mableton, GA 30126-3467

Dear Mr. Yancey:

This is in response to your letter of August 2, 2006, addressed to the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA), Directorate of Construction, (DOC), regarding an unprotected skylight on a building constructed over twenty years ago. DOC has referred your letter to the Directorate of Enforcement Programs (DEP). On August, 9, 2006, during a telephone conversation, you discussed your concerns with a member of my staff and clarified your incoming question. Your paraphrased scenario, question, and our response are provided below.

Scenario: Work on a leak around a roof vent took place near an unprotected skylight. Protective guarding was not provided to prevent an employee from falling through the skylight.

Question: Does OSHA have any "grandfather" provisions for skylights that would exempt the guarding requirements for older buildings constructed over twenty years ago?

Response: No "grandfather" clause was included in the fall protection requirements of 29 CFR §1910.23, either generally or with specific regard to §1910.23(a)(4), which requires guarding of skylight floor openings and holes. We would also note that the source of the requirements in §1910.23 was ANSI Standard A12.1-1967, and that standard too did not include a grandfathering provision. OSHA has proposed revising the requirements of 29 CFR Subpart D, of which §1910.23 is part. See 55 Federal Register 13360 (April 10, 1990) and 68 Federal Register 23568 (May 2, 2003. The proposed revision would allow use of a personal fall arrest system as an alternative form of protection against a fall through a skylight. See proposed §1910.27(b)(3). Under OSHA's policy for de minimis violations, OSHA will usually accept an employer's compliance with the terms of a proposed standard instead of the terms of an existing standard.

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 employee 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 http://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