Garret Murai | California Construction Law Blog | July 22, 2019
In a straightforward case, but one with widespread applicability today, the 9th Circuit Court of Appeals held that rooftop installation of solar panels isn’t (ain’t) “roofing work” under OSHA.
In Bergelectric Corp. v. Secretary of Labor, Case No. 17-72852 (June 6, 2019), contractor Bergelectric Corporation sought review of a final order of the Occupational Safety and Health Review Commission, in which OSHA held that Bergelectric was required to comply with the stricter safety standards governing work on “unprotected sides and edges” as opposed to the more lenient safety standards governing “roofing work.”
In 2016, Bergelectric was hired to install solar panels on the roof of a hangar at the Marine Corps Air Station Miramar in San Diego, California. While Bergelectric was performing work OSHA conducted an inspection. Bergelectric informed OSHA that they were using “warning lines” and a “safety monitor” in compliance with OSHA’s safety standard for roofing work and, further, that its employees would use personal fall arrest systems (PFAS) should they do work outside the warning lines.
OSHA issued a citation alleging that Bergoelectric had violated 29 C.F.R. § 1926.501(b)(1), which requires employees working near unprotected sides and edges to be protected by guardrail systems, safety net systems, or PFAS.
At the hearing on the violation, Bergelectric argued that the alternative standard under 29 C.F.R. § 1926.501(b)(10), which allows workers performing roofing work on low-sloped roofs to use warning lines and a safety monitor, applied. The hearing officer disagreed, and Bergelectric appealed but OSHA declined review.
On appeal to the 9th Circuit Court of Appeals, the 9th Circuit noted that for OSHA to prove a prima facie violation of a particular safety standard:
[T]he Secretary [of Labor] must show by a preponderance of the evidence that (1) the cited standard applies; (2) the employer failed to comply with the terms of the cited standard; (3) employees had access to the violative condition; and (4) the cited employer either knew or could have known with the exercise of reasonable diligence of the violative condition.
And here, explained the Court, 29 C.F.R. § 1926.501(b)(1), which OSHA relied on, provides:
Unprotected sides and edges. Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.
Whereas, 29 C.F.R. § 1926.501(b)(10), which Bergelectric argued should apply, provides:
Roofing work on Low-slope roofs. Except as otherwise provided in paragraph (b) of this section, each employee engaged in roofing activities on low-slope roofs, with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, personal fall arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line system and personal fall arrest system, or warning line system and safety monitoring system.
The Court held that the more stringent “unprotected sides and edges” standards applied, relying on 29 C.F.R. § 1926.500(b), which defines “roofing work” as the “hoisting, storage, application, and removal of roofing materials and equipment, including related insulation, sheet metal, and vapor barrier work, but not including the construction of the roof deck.”
Solar panels, explained the Court, are not among the materials involved in “roofing work.” Simply put, held the Court, solar panels are neither “roofing materials [or] equipment” used in the construction of a roof, such as “insulation, sheet metal [or] vapor barriers.”
So there you have it, if you’re installing rooftop solar panels on a roof with unprotected sides or edges more than 6 feet above a lower level you must either: (1) use guardrail system; (2) safety net system; or (3) each employee must use personal fall arrest systems.
Be careful out there.