OSHA Update - "Construction" or "Maintenance" What OSHA Standards Apply?

by Sherman & Howard L.L.C.
Contact

[authors: Rod Smith, Pat Miller and Matt Morrison]

In most cases, deciding what OSHA standard applies to the work in question is straight forward.  When it comes to deciding whether certain work is "construction," subject to OSHA's Construction Standards, or "maintenance," subject to OSHA's General Industry Standards, however, the answer is not always so clear.  A new OSHA Directive on Highway Construction Work Zones, CPL 02-01-054, issued in October 2012, offers some new insights on how to answer this question.[1] 

Correctly deciding whether particular work comes under OSHA's Construction or General Industry Standards is essential to an employer's efforts to assure compliance and its ability to limit its legal liability.  While some OSHA safety and health requirements are identical under both the Construction and General Industry Standards - Hazard Communication is one example - many are very different.  For instance, OSHA's recent Crane and Derrick rule issued in 2010 applies to cranes used in construction work, but not when the same equipment is used in general industry work.  Another area where the standards differ depending upon the type of work involved is confined spaces.  If the work is considered "maintenance," confined space entries are extensively regulated by OSHA's General Industry Permit-Required-Confined-Space Standard, 29 C.F.R. § 1910.146.  If, on the other hand, the job is considered "construction," only minimal training requirements for confined space entries apply.  29 C.F.R. § 1926.21(b)(6).[2]  Many other OSHA requirements -- including fall protection and work zone protection -- significantly differ depending on whether the General Industry or Construction Standards apply. 

Applying the correct OSHA standard is critical.  Employers must be able to provide the correct equipment and work rules necessary to comply with the law.  When using outside contractors or subcontractors, contract documents may need to correctly identify which OSHA standards govern.  Application of the wrong standard, with resulting violations, could lead to significant OSHA citations and penalties.  Moreover, under OSHA's expanded enforcement of its "controlling employer" theory of liability, owners or general contractors can be liable if their contractors do not apply the correct standard.

While the difference between "construction" and "maintenance" activities may seem to be a matter of common sense, OSHA has not always drawn a "bright line" to distinguish between the two.  OSHA regulations define "construction work" as "construction, alteration, and/or repair, including painting and decorating," but do not define "maintenance" or "general industry" work. 

Since the 1980's, OSHA has attempted to define and distinguish "construction" and "maintenance" work through a number of interpretation letters and directives, the most recent being the Highway Construction Work Zone Directive issued in October 2012.  Collectively, these interpretations set forth a number of factors that OSHA considers when determining whether the work is "construction" or "maintenance."  Some of the more important factors, as identified by OSHA, are summarized as follows:

  • The employer's type of business is not considered.  For example, a manufacturer normally subject to OSHA's General Industry Standards can perform or control "construction activities" subject to the Construction Standards at its facility.  Conversely, a construction contractor can perform "maintenance" subject to the General Industry Standards.
  • The name given to the work is irrelevant.  For example, work performed during most "road maintenance" or "maintenance outage" projects is likely to be "construction work" subject to the Construction Standards.
  • Whether the work is performed in-house by employees or by an outside contractor is not a factor.  It is the nature of the work which determines whether the Construction or General Industry Standards apply, not who does it.
  • "Construction" is not limited to new construction, but includes repair, alteration or replacement of existing structures or equipment.
  • "Maintenance activities" typically involve preserving the existing state of the structure or equipment at scheduled or routine intervals, such as scheduled preventative maintenance or a one-for-one replacement of a part.  "Construction activities," on the other hand, typically involve some improvement or alteration of the equipment or structure.
  • The scale and complexity of the work, including the amount of time, material, and cost needed to complete the work, are very relevant.  Large scale, complex projects are typically considered "construction."
  • Whether the task or project impacts or disrupts other operations is important.  In one interpretation letter, OSHA gives the example of replacing a single shut-off valve in a home heating system without making any alterations to the system as "maintenance."  On the other hand, replacement of a large valve which involves significant alteration or disruption of the system would be considered construction.
  • In determining whether the work is "construction "or "maintenance," OSHA notes that no one factor by itself is determinative and that all information from the project or job should be considered.

As noted, OSHA does not take a "bright line" approach and depending on the circumstances, OSHA's list of factors to be considered can leave an employer with a judgment call - or confusion - as to what standards apply.  The so-called test for "construction" v. "maintenance" also leaves OSHA with significant latitude to issue citations under the General Industry or Construction Standards as it sees fit.  In situations presenting a close call, OSHA may very well decide to use the most protective standards, or those which allow for a greater number of citations.

The question of what standards apply does not arise in every case.  Most tasks or projects are easily categorized as falling under the Construction or General Industry Standards.  Many employers adopt safety and health requirements which exceed all OSHA requirements regardless of what standards apply.  Still, employers facing this question should consider the following:

  • Understand the factors for classifying work as "construction" or "maintenance."  Given the number of OSHA interpretations, directives and also court decisions issued over the years, this can be a challenging task.  In our view, OSHA's November 18, 2003 interpretation letter to Raymond Knobbs, affirmed by the new Directive on Highway Construction Work Zones, provides OSHA's most comprehensive list and discussion.  If necessary, consult a qualified safety consultant or attorney.
  • If cited, carefully evaluate OSHA's determination of what standard applies, Construction or General Industry.  In all cases, OSHA has the burden of showing that they have applied the proper standard.  In our experience, OSHA's determination can sometimes be incorrect and should be challenged.

 


[1] Contractors and other employers engaged in highway work or working near roadways are urged to review the Directive for useful information on how OSHA intends to inspect and issue citations for work zone violations.

[2] OSHA has used the General Duty Clause to cite confined space hazards not governed by the Construction standard.  In addition, OSHA has also proposed, but has not yet adopted, a comprehensive permit-required confined space in construction standard.

Rodney Smith, Pat Miller, Chuck Newcom and Matt Morrison are part of Sherman & Howard's Labor & Employment Law Department, practicing in the areas of occupational safety and health law. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

For more information please contact one of the members of the OSHA Practice Group.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Sherman & Howard L.L.C. | Attorney Advertising

Written by:

Sherman & Howard L.L.C.
Contact
more
less

Sherman & Howard L.L.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.