Brand Energy Services, LLC v. OR-OSHA

OR-OSHA rule 29 CFR section 1926.451(g)(1), requiring employees working on scaffolds to be protected by fall-protection systems, does not apply to employees dismantling a scaffold. However, 29 CFR section 1926.451(g)(2) does apply.

Brand Energy Services appealed a final order of the Workers' Compensation Board approving a citation for violating 29 CFR section 1926.451(g)(1), which requires employees working on scaffolding to have a fall-protection system in place. An employee was dismantling scaffolding when he fell from it. The employee was wearing a fall-protection harness, but did not have it secured to anything. Brand Energy Services was given a citation as a result. The Court held OR-OSHA's interpretation of the rule was incorrect in that it did not leave room for a feasibility and safety determination. Therefore, 29 CFR section 1926.451(g)(1) did not apply. It further held that 29 CFR section 1926.451(g)(2) was the proper provision to apply. However, the parties had stipulated that if 29 CFR section 1926.451(g)(1) did not apply, the citation should be dismissed. As a result, the Court reversed the Workers' Compensation Board's final order. Reversed and remanded.