OSHA: Solar Panel Installation is Not Roofing Work
Construction and Procurement Law News, Q3 2019
In June, the United States Court of Appeals for the Ninth Circuit decided that rooftop solar panel installation is not “roofing work” under Occupational Safety and Health Administration (“OSHA”) regulations. This decision has immediate implications for any contractor installing solar panels, as a more stringent employee fall protection standard applies to solar panel installation compared to the less stringent standard for “roofing work.”
In Bergelectric v. Secretary of Labor, a contractor was hired to install solar panels on the roof of a Marine Corps Air Station hanger in San Diego, California. While the contractor’s employees worked on the project, OSHA conducted a two-day safety inspection of the work site. The contractor’s employees informed OSHA inspectors that they were using both warning lines and a safety monitor to comply with fall protection requirements. Additionally, the contractor’s employees told the inspectors that, in the event the workers needed to go outside the warning line zone, they would use a personal fall arrest system (“PFAS”) for protection.
Following the inspection, OSHA issued a citation claiming three major violations of the fall protection standards. The decision to find a violation of the fall protection standard rested on the “general standards of 29 C.F.R. § 1926.501(b)(1), which require employees working near the unprotected sides and edges more than 6 feet above the level below to be protected by guardrail systems, safety net systems, or a PFAS.” None of these were used by the employees.
At an administrative hearing regarding the validity of the citation, an administrative law judge for OSHA found that the citation issued to the contractor was proper, as the installation of solar panels was not “roofing work” under OSHA regulations. The contractor appealed OSHA’s decision to the Ninth Circuit Court of Appeals, which affirmed the administrative law judge’s holding.
To reach its decision, the Court looked to OSHA’s rules for the definition of “roofing work.” Solar panel installation is not referenced in OSHA’s definition of “roofing work.” On that basis, the Court decided that the plain language of the definition makes it clear that “roofing work” does not cover all materials and equipment which can be installed on a roof, but instead is narrowly defined to cover literal “roofing” material used to construct the physical roof structure. Because the contractor’s work on the hanger was not connected to constructing the hanger roof, but rather installing solar panels on the already completed roof, the less stringent “roofing work” fall standard was inapplicable. This meant that the contractor had to comply with the more robust fall protection standard found in 29 C.F.R. § 1926.501(b)(1), which requires employers to either provide employees with a PFAS, or provide safety net systems, or provide guardrail systems to prevent or lessen the impact of falls.
What can contractors take away from the OSHA enforcement standard and the decision in Bergelectric Corp. related to installing solar panels? When contractors are hired to install solar panels on roofs with unprotected sides and edges more than six feet above a lower level they have three options. Either they must equip their employees with a PFAS, or they must install either a guardrail system or a safety net system. It is a necessity that one of these three options be implemented. Because the failure to comply with OSHA fall protection standards can result in fines and other consequences (including criminal liability), contractors must have plans in place to ensure that they maintain their employees’ safety and comply with all applicable OSHA and other workplace safety standards. Moreover, general contractors and subcontractors in the rooftop solar panel installation business should consider whether safety manuals and contractual language require modification.
Contractors should understand that the Court’s holding in Bergelectric Corp may apply to any contractor tasked with installing rooftop affixed equipment six feet or above a lower level. Under this holding, HVAC, standby generator, and satellite dish installation projects are not “roofing work”, and contractors may be required to implement similar robust fall protection systems to comply with OSHA rules.