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You send workers up on the flat roof to fix an HVAC unit. Is the work considered “maintenance,” covered under OSHA’s general industry fall protection rules, or “repair,” subject to OSHA’s construction rules? You send workers in to a tank to clean and paint it. Is the work covered under OSHA’s confined space rule for general industry or under the new OSHA confined spaces in construction rule? You may be surprised at the answer.
General industry operations (manufacturing, health care, service, retail, trucking transportation, etc.) are covered under standards contained in 29 CFR 1910, while construction work is governed by 29 CFR 1926. However, the type of work that employees are performing on any given day, not the industry in which they are employed, dictates the applicable standards.
For example, when a manufacturer’s employees are engaged in building an addition onto the employer’s plant, they may be covered by construction standards. Mobile factories, tool yards, and fabrication plants can be covered by the construction standard, provided they are “dedicated exclusively, or nearly so, to performance of the contract or project, and are so located in proximity to the actual construction location that it would be reasonable to include them.”
Mere delivery to a construction site is not construction work; however, the amount of time spent at a site discharging a load, regular and recurring deliveries, and time spent erecting, repairing, or dismantling delivered materials at a construction site are factors that may determine if a delivery is subject to construction regulations.
“Construction work” is defined in both § 1910.12(b) and in § 1926.32(g) as “work for construction, alteration, and/or repair, including painting and decorating.” Maintenance work is covered by the general industry standards.
Although there is no regulatory definition for "maintenance," an OSHA letter of interpretation from November 18, 2003 defines “maintenance” as making or keeping a structure, fixture, or foundation (substrates) in proper condition in a routine, scheduled, or anticipated fashion. An employer should make the distinction between construction and maintenance on a case-by-case basis.
The following are relevant factors and examples set forth by OSHA to help distinguish between construction and maintenance:
The scale and complexity of the task (large scale tasks and objects indicate construction). This takes into consideration concepts such as the amount of time and material required to complete the job.
For example, if a steel beam in a building had deteriorated and was to be replaced by a new, but identical beam, the project would be considered a construction repair rather than maintenance because of the replacement project's scale and complexity.
Whether the task improves the original condition or preserves it (improvement indicates construction, preservation indicates maintenance). Construction work is not limited to new construction, but can include the repair of existing facilities or the replacement of structures and their components.
For example, the replacement of one utility pole with a new, identical pole would be maintenance; however, if it were replaced with an improved pole or equipment, it would be considered construction;
Whether the task is scheduled at regular intervals (indicating maintenance). This factor must be considered in light of the scale and complexity of the project.
For example, if the painting of power poles is an anticipated, routine, and periodic event to keep them from degrading and to maintain them in their original condition, then the painting is generally considered maintenance work. However, if a bridge was to be stripped and re-painted, that would be considered construction work even if the repainting were done on a scheduled basis because of the complexity and scale.
Removing and replacing a valve in a processing system would be considered construction if the valve constitutes a major portion of the equipment it is in and much of the rest of the system's parts must be moved or altered in the process of doing the job.
When deciding between maintenance and construction, keep in mind that the prevalence of one or two factors may be sufficient to determine the appropriate standard.
Construction industry employers should evaluate the work that is performed by employees away from actual construction sites and determine the applicability of general industry standards to that work. Complex standards, such as the OSHA Lockout/Tagout standard (29 CFR 1910.147), Confined Space (29 CFR 1910.146) and Forklift Certification and Training (29 CFR 1910.178) are but a few of the general industry standards that often apply to construction employers for tasks performed away from actual construction sites.
General industry employers who engage employees to perform construction work should be aware of 29 CFR 1926.20 and .21. Together, these two standards require an employer to develop safety programs to provide for regular and frequent inspections of the job site, materials, and equipment by a competent person; to only permit employees qualified by experience and training to operate equipment or machinery on the job site; and to instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment.
Therefore, if an employer’s employees engage in construction work as described above, the employer is required to understand, to teach employees to understand, and to enforce the applicable construction industry standards.
In many cases, depending on the size of the job, it may be safer and less expensive to engage construction contractors to perform construction work than to train non-construction employees to do the work.
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