By Susan Wiltsie and Crawford LeBouef
Earlier this year, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) launched a new National Emphasis Program (NEP) to prevent or otherwise reduce workplace falls: the Fall NEP. In its announcement, OSHA noted that workplace falls are the “leading cause of fatal workplace injuries and the violation the agency cites most frequently in construction industry inspections.”
“Considering that falls remain the leading cause of fatalities and serious injuries in all industries, the agency has determined that an increase in enforcement and outreach activities is warranted.”
— OSHA Fall NEP
NEPs are temporary programs that focus OSHA’s resources on particular hazards and/or high-hazard industries. Existing and potential new NEPs are evaluated using inspection data, injury and illness data, National Institute for Occupational Safety and Health (NIOSH) reports, peer-reviewed literature, analysis of inspection findings, and other available information.
OSHA’s 12th active NEP,¹ the Fall NEP took effect on May 1, 2023, but it contains a 90-day outreach period. This means that programmed inspections will first begin on or around July 30, 2023. The Fall NEP has no expiration date, but it will be reviewed within six months of issuance to determine its effectiveness and whether it will be continued.
The Fall NEP doesn’t focus on any single industry, but rather on preventing/reducing fall-related injuries and fatalities for employees working “at heights.” The Fall NEP is motivated by historical Bureau of Labor Statistics (BLS) data and OSHA enforcement history regarding fall hazards. According to the DOL announcement, BLS data shows that in 2021, 850 of the 5,190 fatal workplace injuries involved falls (~16%), and 680 of the 5,190 (~13%) fatal workplace injuries were associated with falls from elevations.
The Fall NEP provides that, “Considering that falls remain the leading cause of fatalities and serious injuries in all industries, the agency has determined that an increase in enforcement and outreach activities is warranted.”²
Further, OSHA stated in the Fall NEP that “ anticipates that most of the inspections will occur in construction because the majority of the fatal falls … each year occur on construction worksites.” However, as noted, the Fall NEP covers all industries.
The Fall NEP: Compliance & Inspections
The Fall NEP includes guidance to compliance officers for locating and inspecting fall hazards. OSHA will utilize a combination of enforcement, outreach, and compliance assistance to reduce fall injuries/fatalities. To do so, the Fall NEP allows OSHA compliance officers to open inspections whenever they observe someone working at heights. In addition, the Fall NEP has an outreach component that will focus on educating employers about effective ways to keep their workers safe. As part of this outreach component, each area and regional office must develop and implement a comprehensive fall prevention awareness outreach program 90 days prior to initiating inspections. Area offices and regions must then continue with at least quarterly outreach efforts.
Notably, the Fall NEP does not limit a compliance officer’s authority by specifying at what height someone must be working in order to initiate an inspection. OSHA requires fall protection to be provided at elevations of four feet in general workplaces, five feet in shipyards, six feet in the construction industry, eight feet in longshoring operations, and/or whenever working over dangerous equipment or machinery, regardless of the fall distance. The Fall NEP allows a compliance officer to open an inspection whenever they see a worker working “at height,” which is not defined and presumably means at any height covered by any regulation. Because compliance officers are authorized to begin an inspection when hazards are observed, it admittedly could be difficult for distinctions to be made regarding the precise height if observing from a distance. Compliance officers can begin an investigation at any time, regardless of whether the compliance officer is at work or traveling to work at the time of the observed hazard.
The Fall NEP instructs compliance officers to contact their area office and obtain supervisory authorization prior to beginning an immediate inspection, but this pre-approval is not mandatory and they may begin the inspection if they are unable to reach the area office. This includes, but is not limited to, situations where the compliance officer has no cell-service or the supervisor is not “immediately available.”
Compliance officers are instructed to target these 10 categories for inspections outside of construction:
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- Utility line work/maintenance (electrical, cable)
- Arborist/tree trimming
- Holiday light installation
- Road sign maintenance/billboards
- Power washing buildings (not connected to painting)
- Gutter cleaning
- Chimney cleaning
- Window cleaning
- Communication towers
Further, during all programmed safety and health inspections, such as those under other emphasis programs, and during all un-programmed inspections (incidents, complaints, and referrals), the Fall NEP instructs compliance officers to observe the surrounding area for potential fall exposures and conduct an inspection under the Fall NEP if any are present. Inspections under the Fall NEP will be conducted in accordance with the field operations manual and will normally be limited to evaluating worker exposure to hazards associated with falls, although a compliance officer may expand the inspection’s scope if there is evidence from injury and illness records, plain view hazards, or employee interviews of other potential safety and health hazards or violations at the worksite.
Employers whose work includes worker exposure to fall hazards should expect an increase in inspections under the Fall NEP. Employers should remind employees who work or could work at the height considered a hazard in their industry of their fall protection policies, OSHA requirements, and best practices. Refresher training would be prudent, even if not yet due, to limit the risk of fall protection noncompliance, particularly for fall hazards that are or will be in the public view. Employers also should review their written safety policies to ensure they are comprehensive and compliant and should conduct a thorough inspection of the work areas to identify and correct fall hazards. A comprehensive review of fall hazards includes confirming that all large floor holes and elevated open sided platforms are guarded, all needed rails and toe boards are in place and are secure, all fall protection equipment retains integrity, and harnesses/lanyards intended to be used together are compatible. Employers also should make sure their employees know that safety noncompliance is unacceptable and can be the basis for discipline and discharge.
Notes
¹ A comprehensive list of OSHA’s active NEPs can be found here. In addition, and depending on the employer’s geographic location, there may also be regional or local emphasis programs in effect.
² The full Fall NEP can be reviewed here.
Susan Wiltsie is a partner with Hunton Andrews Kurth LLP. She focuses her practice on labor, employment, and OSHA compliance, defense, and crisis response.
An associate with Hunton Andrews Kurth LLP, Crawford LeBouef guides clients through labor and employment matters, including labor union organizing campaigns and strategies, internal investigations, and litigation surrounding non-compete agreements, trade secrets, discrimination, and wage and hour disputes, among other issues.
