OSHA ultimately cited the employer for three serious scaffolding violations. Although the employer argued that it neither erected nor controlled the scaffold, all three citations were affirmed, and it was assessed a grouped penalty of $7,000. The decision provides several practical reminders for employers regarding scaffold safety and fall protection.

Fully Planked Platforms Are Not Optional

The first citation involved OSHA’s requirement that scaffold platforms be fully planked. OSHA regulations require working platforms to be fully decked between the uprights with only minimal openings unless a larger opening is demonstrably necessary. During the inspection, OSHA documented numerous locations where planks were missing, creating gaps along working platforms. In several instances, employees were observed kneeling or working immediately adjacent to these openings while performing installation work. Some gaps exceeded OSHA’s allowable dimensions, creating clear fall hazards.

The employer attempted to explain that some missing planks accommodated scaffold stairways. While the Administrative Law Judge acknowledged that certain openings may be necessary, it found numerous additional areas where missing planking could not be justified and where the remaining openings exceeded OSHA’s maximum allowable width.

Safe Access Means Proper Stair Rails

The second citation involved scaffold stairways. The scaffold utilized multiple elevated levels connected by interior stair towers that employees used throughout the workday. OSHA observed that none of the stairways contained compliant stair rails with both top rails and midrails on each side, as required by the standard. Employees regularly climbed these stairs while transporting tools and materials to upper work levels.

Although the employer argued that only portions of the stair tower lacked handrails and that employees minimized their exposure, the ALJ rejected those arguments after reviewing photographs showing widespread deficiencies throughout the stair system. Employers often focus on fall hazards while employees are actively working but overlook hazards encountered while simply accessing elevated work areas, which are equally important.

Guardrails Must Be Installed Before Employees Use the Scaffold

Perhaps the most significant citation involved missing guardrails. OSHA documented guardrails missing from nearly every level of the scaffold, including open ends and exposed sides. Although cross braces were present in some locations, the ALJ found they were installed at improper heights and therefore failed to satisfy OSHA’s guardrail requirements. The scaffold should never have been released for employee use until compliant guardrails had been installed.

Photographs introduced during the hearing showed employees working directly adjacent to unprotected edges without guardrails, while some wore harnesses that did not appear to be properly secured. In fact, one of the employer’s principal defenses was that certain employees wore personal fall arrest systems (PFAS). However, the ALJ found that argument unpersuasive because the evidence demonstrated that only a limited number of employees wore harnesses. Even among those who did, some were not tied off, while others had lanyards rolled up or unattached to an anchorage. Because use of PFAS was inconsistent and employees remained exposed to unprotected scaffold edges, the ALJ concluded the employer failed to provide adequate fall protection. Guardrails are mandatory for scaffold systems and cannot simply be replaced by inconsistent use of personal fall arrest equipment. Moreover, employers must ensure equipment is properly worn, appropriately anchored and used consistently whenever required.

The Exposing Employer Remains Responsible

Another significant aspect of the decision involves a reiteration of the “multi employer worksite doctrine,” which has been discussed repeatedly in this series and allows OSHA to cite more than one employer. Here, one of the employer’s defenses was that responsibility belonged to the general contractor because it erected and maintained the scaffold. Although it was acknowledged that the general contractor controlled construction of the scaffold, the ALJ rejected this defense because Five Star’s employees were exposed to hazardous conditions and the company had an independent duty to protect them, even when another contractor created or controlled the hazard.

Five Star made only limited efforts to address the hazards, and only after OSHA initiated its inspection. Employers must take reasonable steps to protect their employees. These measures include notifying the controlling contractor of hazardous conditions, requesting prompt correction, restricting employee exposure until hazards are eliminated or implementing other effective protective measures. Here, supervisors knew about the missing planks, missing stair rails and missing guardrails for several days before OSHA arrived, yet work continued until the compliance officer identified the deficiencies.

Employers should inspect scaffold platforms before permitting employees to work. Missing planks, excessive gaps or incomplete decking should be corrected before work begins. Procedures should require supervisors to inspect scaffolds before each shift, confirm platforms are fully planked, verify guardrails and stair rails are installed, ensure employees properly use personal fall arrest systems when required and immediately report deficiencies to the contractor responsible for scaffold erection. Most importantly, employees should not be permitted to use scaffolding presenting obvious fall hazards simply because another contractor built it. Subcontractors cannot avoid liability by pointing to the general contractor when their employees continue working on unsafe scaffolding.

About the author: Costas Cyprus, Esq. is a partner at the firm of Welby, Brady & Greenblatt, LLP, in White Plains, NY.   He practices construction law and commercial litigation, and can be reached at 914-428-2100 and at ccyprus@wbgllp.com. The articles in this series do not constitute legal advice and are intended for general guidance only.

Published: August 11, 2026.