by 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.
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). 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.
 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.
 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.
Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.
©2012 Sherman & Howard L.L.C. December 10, 2012