June 12, 2020

Mr. Timothy Brink
Mechanical Contractors Association of America
1385 Piccard Drive
Rockville, MD 20850

Dear Mr. Brink:

Thank you for your letter requesting clarification of the Occupational Safety and Health Administration (OSHA) standard at 29 CFR 1910.28(b)(13)(iii)(A). This letter constitutes OSHA’s interpretation only of the requirements discussed and may not be applicable to any questions not delineated within your correspondence. Your paraphrased scenario, question, and our response are below:

Scenario: A service technician is on a roof to inspect the condition of and perform simple maintenance upon an air conditioning unit. The unit is 15 feet above the ground and more than 15 feet from the roof edge. The technician does not perform nor is allowed to perform any repair work on the unit. If the initial inspection shows that repair work is needed, approval and authorization from the client would be necessary, and a work plan (including assessment of fall protection needs) would be established. The technician performs this simple maintenance or initial inspection work more than once a day at different worksites with similar conditions. The technician is on a roof from one to two hours for each appointment.

Question: Does 29 CFR § 1910.28(b)(13)(iii)(A) apply to the maintenance work described above?

Response: Yes. In accordance with 29 CFR § 1910.28(b)(13)(iii)(A), when work is performed 15 feet or more from the roof edge, each employee must be protected from falling by a guardrail system, a safety net system, a travel restraint system, personal fall arrest system, or a designated area. This provision allows that employers are not required to provide any fall protection, provided the work is both infrequent and temporary and the employer implements and enforces a work rule that prohibits employees from going within 15 feet of the roof edge without fall protection. It is incumbent upon the employer to show that the exemption applies and that the work is both infrequent AND temporary.

The term "temporary" used in 29 CFR § 1910.28(b)(13)(iii)(A) "means that the duration of the task the worker performs is brief or short. Temporary and brief or short tasks generally include those that a worker is able to perform in less time than it takes to install or set up conventional fall protection."" 81 FR 82494, 82513.

"Infrequent" used in the standard "means that the task or job is performed only on occasion, when needed (e.g., equipment breakdown), on an occasional basis, or at sporadic or irregular intervals. Infrequent tasks include work activities such as annual maintenance or servicing of equipment, monthly or quarterly replacement of batteries or HVAC filters, and responding to equipment outage or breakdown. In these instances, the frequency of exposure to fall hazards is very limited. By contrast, tasks performed or repeated on a daily, routine or regular basis are not infrequent activities within the meaning of the final rule. Infrequent jobs also do not include those that workers perform as a primary or routine part of their job or repeatedly at various locations during a work shift. A task may be considered infrequent when it is performed once a month, once a year, or when needed.” 81 FR at 82513.

Although the work performed in the scenario noted above is temporary, it is not infrequent because the employee, travelling from jobsite to jobsite, is exposed to possible fall hazards every day or multiple times a day. Therefore, each such employee working 15 feet or more from roof edge must be protected from falling by a guardrail system, a safety net system, a travel restraint system, personal fall arrest system, or a designated area. As the set up and use of fall protection systems may take longer than the task(s) itself, compliance with this provision may be accomplished by the use of the designated areas required by the standard for the tasks that are brief and short.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA’s requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA’s interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA’s website at http://www.osha.gov.

If you have any questions, please feel free to contact the Directorate of Enforcement Programs at (202) 693-2100.

Sincerely,

Patrick J. Kapust, Acting Director
Directorate of Enforcement Programs