In early December 2010, MOSH rescinded its Fall Protection for Residential Construction
regulation. In late December 2010, Federal OSHA issued a Federal Program Change memo to rescind its
interim enforcement policy on residential fall protection for certain residential construction
activities, and replaced it with new compliance guidance.
MOSH is adopting two (2) subsections within the new compliance guidance for residential
construction. Definition of Residential Construction and Citation Policy:
Definition of "residential construction."
Under OSHA STD 03-00-001 (MOSH Instruction 03-2), a project was considered residential
construction "where the working environment, materials, methods and procedures [we]re essentially the
same as those used in building a typical single-family home or townhouse." OSHA explained that for
purposes of the directive, residential construction was characterized by wood framing and wooden
floor joists and roof structures and involved traditional wood frame construction techniques. A
discrete part of a large commercial building, e.g., a wood frame, shingled entranceway to a mall,
could fall under the definition of residential construction if the aforementioned characteristics
were present. This definition was always intended to clarify the scope of the directive; it was not
meant to represent OSHA's view of the scope of 1926.501(b)(13). Now that OSHA has rescinded the
directive, OSHA believes that adopting a clear interpretation of "residential construction" for
purposes of 1926.501(b)(13) will facilitate enforcement as well as compliance efforts.
In the 1999 ANPR, OSHA requested comments on the definition of "residential construction." OSHA
has considered the comments received in response to that request (see discussion below). MOSH is
adopting an interpretation of "residential construction" that reflects what it originally intended
when it promulgated the provision specific to "residential construction" in 2003. OSHA's
interpretation of "residential construction" for purposes of 1926.501(b)(13) combines two elements -
both of which must be satisfied for a project to fall under that provision: (1) the end-use of the
structure being built must be as a home, i.e., a dwelling; and (2) the structure being built must be
constructed using traditional wood frame construction materials and methods (although the limited use
of structural steel in a predominantly wood-framed home, such as a steel I-beam to help support wood
framing, does not disqualify a structure from being considered residential construction).
- Residence Requirement.
To fall within the definition of "residential construction," the end-use of the building in
question must be as a home or dwelling. This comports with the plain meaning of the term
"residential" in the text of 1926.501(b)(13) and is consistent with OSHA's original intent in
promulgating that provision.
OSHA received several comments in response to the ANPR that recommended excluding an end-use
requirement from the definition of residential construction. The NAHB (Ex. 3-2453) asked OSHA not
to "make an arbitrary and capricious assessment that the end-use of the structure has any
correlation to the hazard to which an employee may be exposed or the type of fall protection
systems that can be used." The NRCA (OSHA-S206C-2006-0924-0189) agreed, commenting that "emphasis
should be placed on the best way to protect workers, not on the building's use." Other commenters
supported the positions of the NCRA and the NAHB. And in December 2009, ACCSH recommended a
definition of "residential construction" that would have covered the building of non-residential
structures where the environment, methods, materials and procedures used were similar to those
used to build single-family residences. (OSHA-2009-0030-0024.)
OSHA has given these comments full consideration; however, the Agency has decided that an end-use
requirement is necessary to comport with the plain language of 1926.501(b)(13) and OSHA's intent
in promulgating that provision. In the original Subpart M rulemaking, various commenters on the
proposed rule urged OSHA to establish unique fall protection requirements for "the
residential/light commercial sector" or for "residential and light commercial construction."
(59 FR at 40693.) For example, the Home Builders Association of Denver (HBAD) commented that "a
majority of residential builders also perform some amount of light commercial work and [suggested
that] the two types of construction should be categorized [and treated together] as 'light
construction.'" (59 FR at 40693.) Other commenters specifically urged OSHA to distinguish light
construction from heavy commercial construction. OSHA responded that evidence did not warrant
having different rules for light and heavy construction. (59 FR at 40695.) And while OSHA was
aware of terms like "light construction," which avoid reference to the use of the structure and
instead create a category of building defined solely by materials and methods, it declined to use
such terms in the text of 1926.501(b)(13) and elected to use the phrase "residential
construction" instead. This approach reflected an intent by the Agency to limit the applicability
of that paragraph to structures with a residential end-use, i.e., dwellings.
- Wood Frame Construction Requirement.
To fall within the definition of "residential construction," the building in question must be
constructed using traditional wood frame construction materials and methods. All of the comments
received during the original Subpart M rulemaking that suggested feasibility problems with
conventional fall protection dealt with wood framing work. (59 FR at 40693-40695.) Therefore, the
term "residential construction" in 1926.501(b)(13) was designed to apply only to the construction
of homes using traditional wood frame construction materials and methods. This includes the
construction of otherwise covered residences if there is limited use of structural steel in a
predominantly wood-framed home, such as a steel I-beam to support wood framing.
Recently it has become more common to use metal studs for framing in residential construction
rather than wood. Some commenters to the ANPR believed that the use of metal studs for framing
should be included in the definition of residential construction. (See, e.g., NAHB (Ex. 3-2453);
NRCA (OSHA-S206C-2006-0924-0189).) Furthermore, at its December 2009 meeting, ACCSH recommended a
definition of residential construction that listed metal studs, along with wood, as materials
used for framing. (See OSHA-2009-0030-0024.) OSHA agrees with the commenters and ACCSH on this
point. The same feasibility concerns that apply to wood framing apply to framing done using metal
studs. Accordingly, OSHA will consider it within the bounds of "traditional wood frame
construction materials and methods" to use cold-formed sheet metal studs in framing.
And finally, OSHA is aware that many homes and townhouses have been built using traditional wood
frame construction throughout the structure except for the exterior walls, which are often built
with masonry brick or block. In a March 27, 2006, letter, the NAHB advocated for masonry block
construction to be treated as wood frame construction because "masonry block wall construction
has the equivalent strength of traditional wood frame, stick-built walls." Because the same fall
protection methods are likely to be used in the construction of homes built with wood framed and
masonry brick or block exterior walls, OSHA has decided that it is consistent with the original
purpose of 1926.501(b)(13) to treat the construction of residences with masonry brick or block in
the exterior walls as residential construction.
In accord with the discussion above, and for purposes of the interpretation of "residential
construction" adopted herein, "traditional wood frame construction materials and methods" will be
Framing materials: Wood (or equivalent cold-formed sheet metal stud) framing, not steel or
concrete; wooden floor joists and roof structures.
Exterior wall structure: Wood (or equivalent cold-formed sheet metal stud) framing or
masonry brick or block.
Methods: Traditional wood frame construction techniques.
- Nursing homes, hotels, and similar facilities.
As noted above, to fall within the definition of "residential construction," the end use of the
building must be as a home or dwelling and the building must be constructed using traditional
wood frame construction materials and methods. Construction of nursing homes, hotels, and similar
facilities typically involves the use of the following materials in the framework of the
structure: precast concrete, steel I-beams (beyond the limited use of steel I-beams in
conjunction with wood framing, described above), rebar, and/or poured concrete. These materials
are not used in traditional wood frame construction, and buildings constructed using these
materials will not be considered "residential construction" for purposes of 1926.501(b)(13). For
this reason, OSHA expects that in the vast majority of cases the Compliance Safety and Health
Officer (CSHO) will be able to readily ascertain that the building of structures such as hotels,
motels, and nursing homes is not "residential construction," as that term is interpreted in this
directive. However, if a CSHO encounters an unusual situation in which a project such as a hotel,
motel, or nursing home is being constructed using traditional wood frame construction materials
and methods, he or she should contact the Chief of Compliance through their Regional Supervisors.
- If an employer is engaged in residential construction, but does not provide guardrail systems,
safety net systems, personal fall arrest systems, or other fall protection allowed under
1926.501(b), a citation for violating 1926.501(b)(13) should be issued unless the employer can
demonstrate the infeasibility of these protective measures or the existence of a greater hazard. If
the employer demonstrates infeasibility or a greater hazard, the CSHO must determine if the
employer has implemented a fall protection plan meeting the requirements of 1926.502(k). Part of
that determination will be based on whether the employer has instituted alternative measures to
reduce or eliminate fall hazards.
- Under MOSH Instruction 03-2, the employer was not required to have a fall protection plan that
was written and site-specific. With the cancellation of MOSH Instruction 03-2, fall protection
plans under 1926.502(k) must be written and site-specific. If the fall protection plan is not
written, site-specific, or otherwise fails to meet the requirements of 1926.502(k), the violation
should be cited as a grouped citation of 1926.501(b)(13) and 1926.502(k). A written plan developed
for repetitive use for a particular style/model home will be considered site-specific with respect
to a particular site only if it fully addresses all issues related to fall protection at that site.
- The Assistant Commissioner or authorized representative shall ensure compliance with this
- Compliance and Consultation supervisors shall ensure that this instruction is reviewed with all
Compliance Safety and Health Officers (CSHOs).
- It is strongly recommended that CSHOs consult with their supervisor before accepting the use of
a fall protection plan.
cc: J. Ronald DeJuliis, Commissioner, Division of Labor and Industry
Craig D. Lowry, Deputy Commissioner, Division of Labor and Industry
Jonathan Krasnoff, Assistant Attorney General
Office of Administrative Hearings