Using older fixed ladders at a construction worksite

September 5, 2006

Mr. Stanford T. Liang, CIH, CSP

Corporate Health and Safety Officer

KTA-Tator, Inc.

[Recipient address omitted]

Re: Use of fixed ladders constructed prior to the effective date of 29 CFR 1926 - Subpart X.

Dear Mr. Liang:

This is in response to your letter dated September 22, 2005, to the Occupational Safety and Health Administration (OSHA) in which you ask about OSHA's enforcement policy with regard to fixed ladders built before 29 CFR 1926.1053 was promulgated. We apologize for the delay in responding.

We have paraphrased your question as follows:

Scenario: A contractor is painting water tanks owned by a local water authority. The water tanks are equipped with fixed ladders, which were installed prior to 1971. The contractor frequently uses these fixed ladders to access its work area. The ladders are less than 150 feet in length, and in good condition overall, but the rungs are round and smooth, not non-skid as required by 1926.1053(a)(6)(i). Furthermore, they are 12-14 inches wide, and thus too narrow to meet the requirements of 1926.1053(a)(4)(i).

Question: The contractor lacks the authority to replace the deficient ladders. However, the ladders are provided with fall arrest systems to protect the workers from fall hazards. In light of the contractor's use of fall protection, would the contractor nonetheless be in violation of these Subpart X requirements?

Answer:

Skid-resistant rungs/steps

29 CFR 1926.1053(a)(6)(i) states:

The rungs and steps of fixed metal ladders manufactured after March 15, 1991, shall be corrugated, knurled, dimpled, coated with skid-resistant material, or otherwise treated to minimize slipping.

The standard provides that any fixed metal ladders manufactured more than 60 days after the effective date of revised Subpart X must be non-skid or treated to minimize slipping. You state in your letter that the fixed ladders in question were installed prior to 1971. Because they were not "manufactured after March 15, 1991" as the language above explains, the fixed ladders do not fall within the scope of §1926.1053(a)(6)(i).

Minimum clear distance

29 CFR 1926.1053(a)(4)(i) requires,

The minimum clear distance between the sides of individual-rung/step ladders and the minimum clear distance between the side rails of other fixed ladders shall be 16 inches (41 cm).

Subpart X became effective on January 14, 1991, long after the fixed ladders in question were installed. (See volume 55 of the Federal Register, page 47660).[1] You indicate that the fixed ladders on the work site measure twelve to fourteen inches between the side rails. Those ladders do not comply with §1926.1053 (a)(4)(i).

You stated in your question that the contractor does not have the authority to alter these ladders since they are owned and controlled by the local water authority. You also stated that the workers are protected while on the ladders by use of a personal fall arrest system, and ask if that would be sufficient in these circumstances.

The standard in this instance already requires fall protection. Pursuant to §1926.1053 (a)(19), fall protection must be provided — whether the employee is climbing (up or down) or working from a ladder — whenever the length of climb equals or exceeds 24 feet. Also, even if the length of climb is less than 24 feet, under §1926.1053(a)(18), cages, wells, ladder safety devices, or self-retracting lifelines must be provided where the top of the ladder is greater than 24 feet above lower levels.

Your question raises the issue of an employer's responsibility when its employees are exposed to a violative condition the employer neither created nor has the ability to correct. In that circumstance, that employer would be required to take reasonable steps to get the violative condition corrected by the controlling employer,[2] and if that correction was not made, to then take reasonable alternative steps to protect its employees.

For the circumstances you detail, the painting subcontractor would be obligated to:

• Ask the water authority to retrofit its fixed ladders to comply with §1926.1053(a)(4)(i); and

• If the water authority refuses to take corrective action, then the subcontractor must implement the "next best" means to protect its employees by ensuring that its employees are protected by a personal fall arrest system while on the ladder at heights of 6 feet and above.

Note that all other applicable requirements of Subpart X - Stairways and Ladders would be applicable in this scenario. In addition, the subcontractor must include the particular hazards presented by use of these non-compliant fixed ladders in the training requirements outlined in 29 CFR 1926.1060. Section 1926.1060 provides:

§1926.1060 Training requirements.

The following training provisions clarify the requirements of §1926.21(b)(2), regarding the hazards addressed in subpart X.

(a) The employer shall provide a training program for each employee using ladders and stairways, as necessary. The program shall enable each employee to recognize hazards related to ladders and stairways, and shall train each employee in the procedures to be followed to minimize these hazards.

(1) The employer shall ensure that each employee has been trained by a competent person in the following areas, as applicable:

(i) The nature of fall hazards in the work area;

if you need additional information, please contact us by fax at: U.S. Department of Labor, OSHA, Directorate of Construction, Office of Construction Standards and Guidance, fax # 202-693-1689. You can also contact us by mail at the above office, Room N3468, 200 Constitution Avenue, N.W., Washington, D.C. 20210, although there will be a delay in our receiving correspondence by mail.

Sincerely,

Noah Connell, Acting Director

Directorate of Construction

[1] Note that ANSI standard ANSI A14.3-1956 indicates that a 16 inch minimum clear distance between side rails has been accepted by the industry since 1956. Figure 5, entitled Minimum Ladder Clearance, in the 1956 ANSI standard indicates a 16 inch minimum distance between side rails. 1926.1053(a)(4)(i) is based on the 1984 version of ANSI A14.3, paragraph 5.1.2. (See 55 FR 47660).

[2] A controlling employer is an employer who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them. See OSHA's CPL 2-0.124 Multi-Employer Citation Policy.