By Homer R. Peterson II, P.E., CSP
Falls to Lower Levels Through Holes and Skylights
OSHA uses the term “general industry” to describe all industries that do not involve agriculture, construction, or maritime work and defines “construction work” in Section 29CFR§1926.32(g) as “work for construction, alteration, and/or repair, including painting and decorating”. Fall hazards associated with holes and skylights are encountered in both general industry and construction work. On December 19, 2017, the U.S. Bureau of Labor Statistics reported that in 2016, falls to lower levels through work surfaces and existing openings, including falls through holes and skylights, accounted for 697 deaths, or 82% of the 849 deaths due to falls, slips, and trips, and 13% of the 5,190 total occupational fatalities.
OSHA Fall Protection for Walking Working Surfaces in General Industry
General Industry – Holes and Skylights – OSHA’s major revisions to 29CFR§1910 Subpart D Walking Working Surfaces became effective on January 17, 2017. Regarding holes, 29CFR§1910.28(b)(3)(i) provides that in general industry, the employer must ensure that each employee is protected from falling through any hole (including skylights) that is 4 feet or more above a lower level by one or more of the following: a) covers, b) guardrail systems, c) travel restraint systems, or d) personal fall arrest systems.
Background – Holes and Skylights in General Industry and Construction
The need for temporary access holes during maintenance operations in general industry can expose workers to fall hazards while working in proximity to the temporary holes. Also, roofers, HVAC workers, electricians, ironworkers, carpenters, plumbers, laborers, and other workers can be exposed to roof skylights while performing maintenance work on rooftop items such as roofing, air conditioners, antennas, electrical fixtures, skylights, and steel or concrete structures.
In construction, open holes are more common than in general industry because construction work surfaces are often in continual states of creation or change. Leading edges, holes, openings, and unprotected edges are constantly being created, modified, moved, and eliminated by various trades as they perform their work. In addition, construction workers can be exposed to skylight hazards when working on the roofs of new buildings or when performing alteration or repair work on the roofs of existing facilities.
CASE STUDY # 1 – Fall through Floor Hole
General contractor BC hired specialty contractor HD to install metal floor deck and metal roof deck for a retail store building. After HD installed the metal deck, BC cut an access opening in the floor deck of the entry vestibule attic space as required by fire codes and then covered the opening. The cover was not secured because the hole provided the only access to the space, from below. Subsequently, HD supervisor JC directed HD workers to remove part of the vestibule attic wall to allow temporary alternate access to the space for assessment of work remaining to be performed in the attic space. After entering the attic space through the wall, JC removed the hole cover, fell through the hole, and died from injuries suffered when he struck the ground level below. This case settled prior to trial.
CASE STUDY # 2 – Fall through Roof Skylight
Owner SB hired roofing subcontractor CR to fix leaks in both the flat-roof and pitched-roof areas of SB’s warehouse. SB knew that CR’s roofers would be working in proximity to existing roof skylights. SB also knew that the roof skylights would not support the weight of a man. SB had no knowledge regarding fall protection requirements for working on roofs and left it to CR to take appropriate safety measures to protect its workers. While performing roof-repair work on the pitched area of the roof, CR worker BP (Plaintiff) lost his balance, fell backward onto and through a skylight on the flat area of the roof, and suffered significant injuries when he struck the concrete floor below.
SB argued at trial that the only duty it owed BP was the duty a premises owner owes to a business invitee. SB argued that it was not liable to BP because CR, the entity that had employed BP, had superior knowledge about the dangers presented by skylights on the flat area of the roof and was responsible for providing any necessary warnings to its own employees.
Trial Court Decision
The trial court rejected SB’s argument and entered a judgment in favor of Plaintiff and against SB and CR. Following the ruling by the trial court, SB filed a timely appeal.
State Supreme Court Decision
The state supreme court REVERSED the trial court’s judgment against SB and remanded for entry of a judgment in favor of SB. Summary of the decision relative to SB’s duty to BP as a business invitee:
- A premises owner’s duty to warn extends only to “hidden defects and dangers that are known to [the premises owner], but that are hidden to the invitee”.
- “There is no duty to warn” … an independent contractor “who has equal or superior knowledge of a potential danger.”
- There is no evidence, in fact, that SB had knowledge superior to its roofing contractor as to the danger posed to a man accidently falling onto a skylight on the roof of the warehouse.
- SB could have reasonably expected that CR had at least as much knowledge as did SB of the danger that would exist if one of CR’s employees were to fall onto a skylight.
- At the point at which the contractor knows as much or more as does the premises owner regarding the land, building, or fixtures, the responsibility for sharing that information with its employees or with subcontractors falls to the contractor.
- Faced with similar factual situations where a worker has fallen through a skylight, often with tragic consequences, courts around the country have held that the premises owner is not liable.
OSHA Fall Protection for Fall Hazards in Construction
Construction – Holes and Skylights – Regulation 29CFR§1926.501(b)(4)(i), found in 29CFR§1926 Subpart M Fall Protection, provides that in construction, employees on walking/working surfaces must be protected from falling through holes (including skylights) more than 6 feet above lower levels by personal fall arrest systems, covers, or guardrail systems erected around such holes. Per 29CFR§1926.502(i), when hole covers are used, they must be capable of supporting at least twice the weight of employees, equipment, and materials that may be imposed on the cover at any one time, be secured when installed to prevent accidental displacement by wind, equipment, or employees, and be color coded or marked with the word “HOLE” or “COVER” to provide warning of the hazard.
Employers engaged in construction work are required to:
- Instruct employees in the recognition and avoidance of unsafe conditions and the regulations applicable to their work environment to control or eliminate any hazards or other exposure to illness or injury [refer to 29CFR§1926.21(b)(2)],
- Provide a training program for employees who might be exposed to fall hazards that enables each employee to recognize the hazards of falling, and train each employee in the procedures to be followed to minimize these hazards [refer to 29CFR§1926.503(a)(1)], and
- Provide and install all fall protection systems required by 29CFR Subpart M before employees begin the work that necessitates the fall protection [refer to 29CFR§1926.502(a)(1)].
Construction Holes and Hole Covers
When encountering a loose piece of plywood on a floor or roof, some workers do not recognize the potential hazard to their well-being. To increase awareness of potential falls from height, employers should consider teaching workers not to step on loose plywood because loose plywood is sometimes improperly placed over holes as a cover. Specifically, contractors should consider instructing employees to treat every piece of loose plywood as a hole cover, even if the plywood is not color coded, marked, or secured to prevent accidental displacement, until certain that the plywood is not being used improperly as a hole cover. While treatment of all loose plywood as a potential fall hazard is considered by some to be a best practice, it is considered by others to be a standard practice.
Skylight Hazards in Construction and General Industry
Owners, property managers, contractors, and workers in general industry and construction that are not aware of the danger of exposure to skylights are referred to ANSI A10.18 (Safety Requirements for Temporary Roof and Floor Holes, Wall Openings, Stairways, and Other Unprotected Edges in Construction and Demolition Operations), which in section 2.15 defines “Skylight” as “A roof accessory that may consist of a flat panel or a domed configuration, and is made of transparent or translucent materials to transmit light into the interior of buildings. Skylights are not designed to be load-bearing structures and should not be stepped, jumped, walked or sat on.” (Italicized emphasis added here).
In August of 2004, the National Institute for Occupational Safety and Health (NIOSH) released its alert titled “Preventing Falls of Workers through Skylights and Roof and Floor Openings” and referenced OSHA standard 29CFR§1910.23(e)(8) that required “skylight screens shall be of such construction that they are capable of withstanding a load of at least 200 pounds applied perpendicularly at any one area on the screen.” Although, as of January 17, 2017, 29CFR§1910.23(e)(8) is no longer an OSHA standard, the language of that obsolete standard seemed to indicate that a skylight or skylight screen that could withstand a 200-pound load would protect employees working in proximity to the skylight. There are still people in both general industry and construction who mistakenly believe that a skylight that can support 200 pounds will protect a worker who falls onto it. However, NIOSH recognized in its 2004 alert that “NIOSH engineers estimate that a 200-pound person falling against a skylight or skylight screen could transmit 400 to 500 pounds of force against it” and recommended that skylight designers and manufacturers “evaluate current skylight designs and consider strengthening skylight components and incorporating safeguards such as protective screens into skylight designs.”
On new construction projects, owners’ representatives must check applicable ordinances, regulations, and building codes to provide the minimum level of skylight support capacity required by law, and should consider installing skylights or skylight screens that can support considerably more than 200 pounds of force, even if not required to do so by applicable laws.
For skylights that have not been designed to be load-bearing structures, owners should consider replacing them with stronger skylights or retro-fitting them with skylight screens designed to provide increased protection for workers on facility roofs. This is a best practice, not a standard practice, because some building codes require skylight replacement only when a roof is replaced to simultaneously bring the roof and the skylights up to then-current building codes.
Workers who lack knowledge regarding skylight hazards will require training prior to exposure to those hazards. Employers should consider instructing their employees to treat all skylights as open holes unless written documentation can be obtained to confirm adequate structural capacity of the skylights. If such documentation cannot be obtained, employers performing work in either general industry or construction should treat these skylights of unknown structural capacity as open holes and provide fall protection for employees working in proximity to them.
When skylights are present on roofs, owners and/or contractors should consider installing DANGER signs to warn workers of the presence of potentially dangerous skylights. Requirements for DANGER signs can be found in OSHA regulations 29CFR§1910.144 (safety color code for marking physical hazards), 29CFR§1910.145 (specifications for accident prevention signs & tags), and 29CFR§1926.200 (accident prevention signs & tags). Additional guidelines for signs can be found in ANSI standards Z535.1-2006 (safety colors), Z535.2-2011 (environmental and facility safety signs), and Z535.3-2011 (criteria for safety symbols).
Use of Personal Fall Arrest Systems (PFAS) Near Holes and Skylights
When employers in general industry or construction use personal fall arrest systems to protect their employees from exposure to falls, those systems must be complete to provide optimal protection. The components of a complete personal fall arrest system are:
- Anchorages – to serve as tie-off locations
- Body harnesses – to distribute forces to the body during fall arrest
- Connectors – to connect all other system components (often lanyards serve this purpose)
- Deceleration devices – shock absorbers are used to reduce fall-arrest forces placed on the body
Anchorages can be difficult to provide at leading edges and on existing roofs. Because installing new anchorages on existing roofs can introduce roof leaks, owners should consider incorporating permanent tie-off anchorages into the roofs of new buildings to serve as tie-off locations for workers.
Workers in general industry and construction are exposed to falls from height when working in proximity to holes and skylights. These fall hazards are not recognized or adequately appreciated by some owners, property managers, contractors, and workers. In my opinion, employers should stress the importance of workers’ awareness of their surroundings when potentially exposed to falls from height and should emphasize the fall hazard exposures presented by the presence of roof skylights and improperly-protected holes. An increase in awareness of the danger presented by floor holes, roof holes, and roof skylights should reduce the number of fatal accidents and serious injuries related to these hazards.
About the Author – Homer R. Peterson II, P.E., CSP
Homer R. Peterson II, P.E., CSP serves as President of Peterson Construction Consulting, Inc. He provides consulting services, including expert witness services, to attorneys, insurance carriers, and companies engaged in both construction and general industry. He provides arbitration services related to construction issues through the American Arbitration Association (AAA). Throughout a 40-year career involving construction, demolition, steel erection, safety, and fall protection on more than 350 projects located in 21 U.S. states and territories, he has observed the policies, programs, procedures, standard practices, and best practices of more than 80 general contractors and numerous specialty contractors. More information is available at www.homerpeterson.com.