When a new construction floor hole must be protected

September 5, 2006

Mr. Albert C. Rauck

[Recipient address omitted]

Re: When protective measures must be installed after a hole is created on a construction worksite. 29 CFR 1926.500(b), 29 CFR 1926.501(b)(4).

Dear Mr. Rauck:

This is in response to your correspondence dated December 23, 2005, submitted to the Occupational Safety and Health Administration (OSHA). Your question relates to the point in time that an employer must protect employees from a newly created hole on a construction site. We apologize for the delay in responding.

We have paraphrased your question as follows:

Question: How soon must an employer install protective measures after a hole is created on the construction site?

Answer:

29 CFR 1926.500(b), Subpart M — Fall Protection, provides:

§1926.500(b) Definitions.

Hole means a gap or void 2 inches (5.1 cm) or more in its least dimension, in a floor, roof, or other walking/working surface.

Walking/working surface means any surface, whether horizontal or vertical on which an employee walks or works, including, but not limited to, floors, roofs, ramps, bridges, runways, formwork and concrete reinforcing steel but not including ladders, vehicles, or trailers, on which employees must be located in order to perform their job duties.

29 CFR 1926.501(b)(4), Subpart M — Fall Protection, provides:

§1926.501(b)(4) Holes. (i) Each employee on walking/working surfaces shall be protected from falling through holes (including skylights) more than 6 feet (1.8 m) above lower levels, by personal fall arrest systems, covers, or guardrail systems erected around such holes. [Emphasis added.]

(ii) Each employee on a walking/working surface shall be protected from tripping in or stepping into or through holes (including skylights) by covers. [Emphasis added.]

An employer has a duty to protect employees from the hazard of a hole in walking/ working surfaces as specified in §1926.501(b)(4). Case law has established that brevity of exposure to a hazard is not a defense to a failure to protect against the hazard.[1] Where the duty under §1926.501(b)(4) applies, it must be complied with immediately.

If you need any information on this matter, please contact us by fax at: U.S. Department of Labor, Directorate of Construction Office of Construction Standards and Guidance, (202) 693-1689. You may also contact us by mail at the above office, Room N3468, 200 Constitution Avenue, N.W., Washington, D.C. 20210, although there may be a delay in our receiving correspondence by mail.

Sincerely,

Noah Connell, Acting Director

Directorate of Construction

[1] See, for example, Sec. of Labor v. A.J. McNulty, 19 OSHC (BNA) 1121, 1132 (1981).