United States: The Bizarre World Of OSHA Subpart R & Fall Protection Requirements

New York, N.Y. (June 2022) - It is widely known and accepted in the construction industry that fall protection must be provided to workers working at a height of six (6) feet or more. This six-foot rule is set forth in OSHA Subpart M (§1926.500, et. seq.). Additionally, Industrial Code Section 23-1.7(b) requires fall protection for workers who are working near unguarded openings or edges, consisting of barriers, safety railings, or gates. This section of the Industrial Code also requires that workers be protected by planking installed "no more than one floor or 15 feet, which ever is less," beneath the opening, or to utilizes life nets or safety belts with lifelines attached to fixed points.

However, OSHA Subpart R (§1926.750, et seq.) sets forth less stringent fall protection requirements for certain steel erection activities. Subpart R is not commonly known among the defense bar and construction insurers. In the field, it authorizes workers to engage in dangerous work behavior, which results in serious and often fatal accidents. And in the courtroom, this statutory provision turns logic on its head where – due to the strict liability provisions of the New York Labor Law – the owner and general contractor are held legally liable to a worker who intentionally flouts the six-foot tie off rule with union blessing.

Subpart R states, in sum and substance, that ironworkers engaged in certain steel erection activities need not use fall protection unless working at a height of 15 feet or more, and in some situations, 30 feet or more.

Remarkably, the injured worker is permitted to argue that an owner should be held liable under Labor Law §240 for failing to provide adequate fall protection, even though the worker is permitted under Subpart R not to use the fall protection equipment that is being provided.

The Language of the Statute

OSHA Subparts M and R were amended in 2001 to include these revised standards covering fall protection for employees engaged in steel erection. (Note: all emphasis in the following statutory language has been added.)

Subpart M states, generally:

Subpart R states, generally:

Subsection 1926.760(a) of Subpart R sets forth the initial 15-foot fall protection requirement for steel erection activities:

Subsection 1926.760(b) of Subpart R sets forth a special 30-foot fall protection requirement for certain categories of ironworkers, specifically for "Connectors" and those "working in a Controlled Decking Zone," as follows:

"Connectors" are ironworkers that install the vertical steel beams to build the floors, and "Deckers" then horizontally lay out and install metal sheets to create the decking (first layer of the story/floor).

A "CDZ" is defined as the area of the structure where the metal decking is initially being installed. In other words, this is the stage where ironworkers are installing the beginnings of the story or floor – typically the top level of the structure.

Notably, subsection 1926.750(c)(1) states that workers must be provided with a personal fall arrest system at heights of 15 feet or more. However, the statute states that Connectors do not need to actually tie off unless they are working at a height of 30 feet or more.

Rationale and Use on Work Sites

In speaking with ironworkers and site safety managers, the practical rationale behind the implementation of Subpart R is that it allows ironworkers engaged in steel erection to perform their work with unlimited physical maneuvering and mobility, which tying off can limit. We were also advised that it is difficult to install netting, guardrails, or tie-off points when ironworkers are building the area in question from scratch – there is no place for such equipment or installation until the decking is complete.

OSHA also sets forth their rationale for the rule, stating:

One must wonder: if there is nothing to tie off to at six feet, then how is it easier to find a tie off point at 15 or 30 feet? This argument defies logic and is nothing more than an excuse of convenience – that to tie-off takes time and restricts mobility.

The subcontract between the construction manager and the ironwork subcontractor typically contains a provision stating that the ironworkers will follow OSHA Subpart R. In other words, the ironwork subcontractor and the union representing ironworkers makes Subpart R a requirement of the contract (because it allows for efficient steel erection) – and they want the construction manager to agree to allow its workers to follow the Subpart R rule. Projects where Subpart R is being followed are referred to as "Subpart R jobs."

Ironworkers in this line of work are fully aware of the Subpart R rule and the requirement that they need not tie off unless working at heights of more than 15 (or 30) feet. Indeed, they are trained on this rule (a requirement of OSHA Subpart R, as noted above). During our interviews with workers, we were told that working at these heights without fall protection is second nature to ironworkers – it is simply part of the job. It is not shocking like it is to outsiders. One worker analogized it to how sitting at a desk or conducting case law research is "part of an attorney's job."

Available Case Law

Despite being objectively dangerous to ironworkers (no matter how trained they are or how "second-nature" the height exposure may be), it is also extremely dangerous to construction defendants and insurers in Labor Law §240(1) litigation. This is because conventional Labor Law §240(1) defenses are rendered meaningless and unavailable to defendants in Subpart R scenarios.

During our interviews, our litigation of §240(1) cases with Subpart R issues, and our review of applicable case law, it became clear that ironworkers on Subpart R jobs are told by their employers and their union that they do not need to use fall protection unless working at heights of more than 15 or 30 feet. In this regard, workers are generally unaware of or are not looking for opportunities to tie off, even when provided. As such, the recalcitrant worker defense is not applicable: the workers are not disobeying any directives; they are actually following directives not to tie off.

Furthermore, ironworkers who fall from these heights are not considered the sole proximate cause of their accidents, because they are actually following Subpart R when they detach their lanyard or leave their fall protection harness in the toolbox. But after a fall, in the courtroom, the plaintiffs' bar and the courts lay fault for any accident squarely on the owner and the construction defendants for failing to provide adequate fall protection in violation of Labor Law §240(1).

There is very little case law on Subpart R, but what is available explains the dangers and lack of defenses more clearly.

In Fuger v. Amsterdam House for Continuing Care Retirement Community, Inc., 2013 N.Y. Misc. LEXIS 1733 (Sup Ct, NY County 2013), the court rejected the premise that the plaintiff, who was following OSHA Subpart R, was a recalcitrant worker when he fell 14 feet and was not using any fall protection. The court relied on the deposition testimony of the defendants' site safety manager, who "never state[d] that he told [plaintiff] to wear any specifically fall-safety equipment. Id. at *11. Instead, the testimony showed that, in accordance with Subpart R of OSHA's Part 1926, [plaintiff] was not required to wear fall-safety equipment, as he was not working under 30 feet from the ground." Id.

In this bizarre world of Subpart R, the court went on to hold, "mere compliance with OSHA regulations does not defeat a prima facie showing of Labor Law §240(1) liability" for defendants. Id. The court stated that the defendants "failed to submit any evidence that would show that [plaintiff] knew he was expected to use fall safety equipment when he was working under 30 feet from the ground" and were thus "unable to rebut plaintiff's prima facie showing," therefore, "plaintiff [is] entitled to partial summary judgment as to Labor Law §240(1)." Id. at *12.

Similarly in Gunn v. Are-East Riv. Science Park, LLC, 2011 N.Y. Misc. LEXIS 5154 (Sup Ct, NY County 2011), the ironworkers were following Subpart R. The plaintiff was wearing a harness, but discovery revealed that there were no lifelines, stanchions, or other points in the area to affix the harness – and further, that same were not provided because of compliance with OSHA Subpart R. Id. at *2, *30. The plaintiff fell approximately 23-29 feet, suffering serious injuries, which rendered him a paraplegic. Id. at *3. The defendants argued that questions of fact existed as to whether he was a recalcitrant worker and the proximate cause of his injuries. Id. at *5.

The court rejected a recalcitrant worker argument, stating "the plaintiff did not intentionally fail to tie off, he was not directed to so do, and did not have anything to tie off to." Id. at *30. The court reiterated, "compliance with OSHA Guidelines, where there is no requirement to tie off and the failure to do so results in the plaintiff's injury, does not defeat a prima facie showing of liability to Labor Law §240(1)." Id. at *16.

These are truly shocking outcomes. It is clear that the application of Labor Law §240(1) is simply inconsistent with the realities of OSHA Subpart R. Ironworker plaintiffs and their union representatives insist on following Subpart R to engage in highly dangerous work at significant heights without fall protection. However, owners and contractors are then "strictly" liable under Labor Law §240 even if they provide proper fall protection, because the ironworker is not obligated to use it.

New York case law generally holds that where a plaintiff is not aware of available fall protection, he cannot be deemed a recalcitrant worker. While not specifically discussing the issues of Subpart R, these cases can be relied upon by the plaintiff's bar to defeat a potential defense argument. For example, in Gallagher v. New York Post, 923 N.E.2d 1120 (2010), the New York Court of Appeals rejected the argument that a "plaintiff ironworker could have prevented his fall by using safety devices present on the project, where there was no evidence that plaintiff had any knowledge as to the availability of these devices, or had received any instructions to use them."

Courts have similarly rejected a sole proximate cause defense in Subpart R cases. In Gunn, supra, the New York County Court held that "a plaintiff is not the sole proximate cause of his injuries where the evidence shows he did not on his own initiative engage in a foolhardy risk, but rather relied on the direction of his foreman or supervisor." In Fuger, supra, the court held that "defendants failed to raise a triable issue of fact whether plaintiff's failure to use a safety device was the sole proximate cause of his injuries, since the record demonstrated that plaintiff was not expected to use any fall protection devices when working less than 30 feet above the ground." In Lorino v 224 W. 57th St., LLC, 2018 N.Y. Misc. LEXIS 997 (Sup Ct, NY County 2018), the plaintiff-ironworker fell 12 feet on a Subpart R job. The plaintiff was never instructed to utilize fall protection under 30 feet or to follow anything other than Subpart R. Id. at *10. The court concluded that since the "plaintiff did not know he had to tie-off," there was no "triable issue of fact as to whether he was the sole proximate cause of his accident." Id.

The Real-Life Consequences of Following Subpart R

Following OSHA Subpart R on construction sites has resulted in serious and often fatal accidents for ironworkers in New York and throughout the country. Below are just a few tragic examples:

• In 2005, an ironworker fell 50 feet to his death at a construction project at the George Washington Bridge.
• In 2006, an ironworker fell 30 feet at a construction site in Schenectady, New York, and sustained multiple injuries.
• In 2007, a 47-year-old ironworker fell 59 feet to his death at a Nevada construction site that was following OSHA Subpart R.
• In 2008, a 28-year-old ironworker fell 25 feet at a construction site in Manhattan, resulting in a severed spinal cord, paraplegia, and a traumatic brain injury.
• In 2015, a 54-year-old ironworker fell 40 feet from a construction site in Massachusetts and eventually died from his injuries.
• In 2019, a 37-year-old ironworker and father of three, fell 60 feet from a construction site in California, resulting in his death.
• In 2019, a 37-year-old ironworker fell three stories to his death while installing metal decking on construction project in Oswego, New York.

Subpart R is in Direct Conflict with Labor Law §240 and Exposes the Hypocrisy of the Plaintiff's Bar

Everyone should agree that it is important to have a safe worksite so that construction workers are as safe as they can be and maximally protected from accidents. One would think such practices would be exponentially more important for workers exposed to higher fall risks. The New York Labor Law litigation industry and Labor Law §240 itself was derived from the importance of proper fall protection. So, it is fundamentally hypocritical for unions and ironworkers in New York to support in any manner the application of Subpart R on New York construction sites. It is even worse - and richly ironic - for the plaintiff's bar to seek to profit by supporting a statute that promotes highly unsafe conditions. Plaintiffs' attorneys consistently rail against construction defendants in litigation as they vie for Labor Law §240 strict liability on behalf of their clients, claiming that safer fall protection is needed. One cannot support Labor Law §240 as a means toward fall protection and site safety while on the other hand supporting Subpart R that eliminates the same fall protection below a 30-foot exposure.

The plaintiffs' bar is well-connected to the construction trade unions in New York and they have a responsibility to try to influence those unions to opt out of Subpart R work and to prevent projects from being designated OSHA Subpart R jobs from the outset. Labor unions and the plaintiffs' bar should universally reject Subpart R jobs, and unions in particular need to step up to protect their members.

If the plaintiffs' bar or the ironworker unions choose to endorse Subpart R, then there needs to be a commensurate carve-out of Labor Law §240(1) liability for the protection of owners and construction defendants. Plaintiffs' attorneys should not benefit financially from Labor Law's punishing strict liability standards while countenancing the elimination of fall protection pursuant to Subpart R.

Conclusion

Subpart R runs counter to the important safety initiatives that are continuously being improved elsewhere on construction sites. Subpart R also runs counter to the purpose of Labor Law §240, which is to encourage fall protection. Indeed, it is nonsensical and hypocritical for an injured ironworker to argue that an owner or contractor should be held strictly liable under Labor Law §240 for failing to provide adequate fall protection, when the same ironworker is permitted under Subpart R not to use the fall protection equipment that is available and provided to them. Owners and general contractors should never be held strictly liable if a worker is following Subpart R. An exception to Labor Law §240 for activities performed under Subpart R is the only logical response.

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