OSHA Institutes New Emphasis Program on Fall Prevention and Protection

Mathew Moldawer
Mathew Moldawer
05/11/2023

It is no doubt that the construction industry can be a dangerous place to work.  Masons, steel erectors, electricians, and other laborers work diligently and most of the time, safely, to meet critical contractual deadlines. Inevitably, accidents happen.  Improper trenching or excavation, improper storage of materials, or similar missteps can result in serious injuries or even death.  Recently, the Occupational Safety and Health Administration (OSHA) has implemented a National Emphasis Program (NEP) to combat the leading cause of fatalities in construction: falls.  The NEP became effective Monday, May 8, 2023.

The reason for the NEP is evident – the National Safety Council Congress released FY 2022 top 10 OSHA violations and the top of the list was fall protection, with 5,260 violations.  Even more striking, falls are the leading cause of fatalities on worksites.  In all industries, of the total fatalities reported in 2020 (4,764), 805 were caused by fatal flaws from slips/trips/falls and 645 were fatal flaws to lower level.  In 2021, total fatalities were 5,190, and fatal falls from slips/trips/falls increased to 850 and 680 were fatal falls to lower level.  In the construction industry alone, of the 1008 fatalities in 2020, 368 were from fatal falls from slips/trips/falls, and 378 were falls to lower level.  In 2021, while the number of total fatalities in construction dipped to 986, fatal falls from slips/trips/falls increased to 390, and the number of fatal falls to lower level increased to 378.

Under OSHA’s NEP procedures, there will be a 90-day outreach period to educate businesses and employees on the new program.  Each Area Office and Regional Office is required to develop and implement a comprehensive fall prevention awareness outreach program 90-days prior to initiating inspections.  In addition, Area Offices and Regional Offices must continue quarterly outreach efforts after the 90-day period has concluded.

After the 90-day period has passed, Compliance Safety and Health Officers (CSHOs) are authorized under the NEP to initiate inspections whenever they observe someone working at heights, which may occur during the CSHO’s normal work-day travel, or when they are enroute to, from, or during other OSHA inspections.  If potential imminent danger condition exists, an inspection shall be initiated, and inspections related to falls will also be initiated as the result of incidents, referrals, and complaints.  If a CSHO cannot immediately investigate, the CSHO is authorized to report their observations to the Area Office.  Additionally, a programmed or unprogrammed inspection shall observe surrounding areas for potential fall exposures and shall investigate if such are present.

The NEP comes at time when fatal falls have occurred that resulted in hefty fines to employers. For instance, in Edwin Taylor Corp. v. United States DOL, 814 F. App’x 498 (11th Cir. 2020), the 11th Circuit Court of Appeals ruled a citation and $101,399 fine against the company was proper.  Edwin Taylor, the general contractor overseeing construction of five three-story condominiums, “did not instruct anyone at the worksite to install guardrails” nor did they “supply guardrail equipment to the worksite crew.” 

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