Background
The Washington State Department of Labor and Industries (L&I) cited construction company Northwest Cascade, Inc. (NWC) for two serious safety violations at a work site. A state compliance officer observed one of NWC’s traffic flaggers standing approximately seven and a half feet from the edge of a 17-foot-deep trench without any fall protection. The citations were for failing to provide a fall protection system for an employee exposed to a fall hazard of 10 feet or more and for failing to develop a written fall protection work plan, as required by the Washington Industrial Safety and Health Act (WISHA).
NWC challenged the violations, arguing that the flagger was not actually exposed to a fall hazard, was exempt from the regulation because he was “directly involved with the excavation process,” and that providing fall protection was infeasible. The Board of Industrial Insurance Appeals upheld the violations, finding the flagger was within the trench’s hazardous “affected area” and was not directly involved in the excavation process. NWC appealed to the superior court, which reversed the Board and sided with the company, concluding that flaggers were indeed exempt. L&I then appealed that decision to the Washington Court of Appeals.
The Court’s Holding
The Court of Appeals reversed the superior court and affirmed the Board’s original decision, reinstating the safety violations against Northwest Cascade. The court held that the flagger was exposed to a fall hazard, was not exempt from fall protection rules, and that NWC failed to prove that compliance was infeasible. The court’s analysis focused on a plain reading of the WISHA regulations.
First, the court determined the flagger was unequivocally “exposed to a fall.” The relevant regulation defines the hazardous “affected area” of a trench as a distance from the edge equal to the trench’s depth, up to a maximum of 15 feet. Since the trench was 17 feet deep, the affected area extended 15 feet from its edge. The flagger, standing just under 8 feet away, was well within this zone. Second, the court narrowly interpreted the exception for workers “directly involved with the excavation process.” It reasoned that a flagger’s job is to control vehicle traffic around the site, an indirect role, unlike the examples listed in the regulation (such as a signal person for a crane or an employee hooking materials) whose duties are immediately connected to the excavation itself.
Finally, the court rejected NWC’s infeasibility defense. The company had the burden to prove that compliance was impossible and that no alternative protective measures were available. The court found substantial evidence, including testimony from the L&I inspector and photos of another flagger on site, showing that the flagger could have performed his duties from a safer distance, outside the 15-foot affected area. Because fall protection was required, the court also upheld the violation for failing to have a written fall protection plan.
Key Takeaways
- Traffic flaggers working near excavations are not considered “directly involved with the excavation process” under Washington law and are therefore not exempt from WISHA fall protection requirements.
- The hazardous “affected area” of a trench, where fall protection is required, is a clearly defined zone based on the trench’s depth (up to 15 feet from the edge), and being within this area constitutes exposure to a fall hazard.
- An employer’s infeasibility defense for a safety violation requires proving not only that the mandated protection is impossible but also that no simpler, alternative measures—such as repositioning the worker to a safer location—are available.
Why It Matters
This decision clarifies the responsibilities of construction employers in Washington regarding worker safety near deep trenches. It puts companies on notice that ancillary staff like traffic flaggers are owed the same fall protection as other workers if they are positioned within a statutorily defined hazard zone. The ruling reinforces the legal principle that exceptions to safety regulations are to be construed narrowly to achieve their protective purpose. It also serves as a reminder to employers that before claiming a safety measure is impossible, they must first exhaust all feasible alternatives, including simple administrative controls like changing where an employee stands.