General Industry or Construction?

Should the scaffold you just erected in the local oil refinery comply with the US federal Occupational Safety & Health Administration (OSHA) General Industry Standards or the Construction Industry Standards?  While you might think this is a question with an easy and simple answer, it isn’t.  Does it matter which standards apply?  That question has two answers: from a compliance standpoint, yes.  From a safety standpoint, not so much.

Erecting a scaffold in an existing oil refinery would suggest that the General Industry standards would apply since the refinery is completed and not being constructed.  This would be an incorrect conclusion: Determining which set of standards apply to a specific situation is much more complex.  While OSHA has a definition for “construction,” there is no definitive regulatory description of “maintenance” or “general industry” where it would be clear to the employer as to which standards to utilize for ensuring compliance but more importantly, that the workplace is safe for his/her employees.

OSHA defines “construction work” as:  “work for construction, alteration, and/or repair, including painting and decorating.” [29 CFR 1910.12(b)]  Additionally, OSHA points out in one of its Letters of Interpretation (LOI): “Also relevant to the distinction between construction and maintenance are the Davis-Bacon Act regulations.  In essence, 29 CFR 5.2(i) defines construction work as ‘generally includ[ing] construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work.’”  [LOI-Knobbs, Nov. 18, 2003]  A dictionary definition of “construction” is: “The act or process of putting together parts.” [Webster, 2000]

In the Knobbs LOI, OSHA refers to a definition for “maintenance” that was in one of its directives by stating: “In OSHA’s directive on the general industry confined space standard, the Agency stated that maintenance involves ‘keeping equipment working in its existing state, i.e., preventing its failure or decline.’” (emphasis added)  [LOI-Knobbs, Nov. 18, 2003]  In a LOI dated February 1, 1999, OSHA describes maintenance:  “Maintenance means keeping equipment or a structure in proper condition through routine, scheduled or anticipated measures without having to significantly alter the structure or equipment in the process.”  While this may clarify the difference between “construction” and “maintenance” in OSHA’s mind, it does little to clarify it for the typical scaffold erector or his/her employer.  Research indicates that OSHA has wrestled with the issue for some time since there is more than one Letter of Interpretation addressing the topic.

Before discussing what might describe a work activity as “construction” or maintenance,” it would be instructional to describe which factors do not determine whether the work activity is “construction” or not.  First the name of the company has nothing to do with the matter.  For example, just because your company is called Dave’s Construction does not mean that all your work is construction.  Second, who the employees are has nothing to do with determining the applicability of the standards.  Third, whether it is “in-house” employees or an outside contractor has nothing to do with the type of work being performed.

“Construction is not limited to new construction, but can include the repair of existing facilities or the replacement of structures and their components,” declares OSHA [ibid]  The project’s scale and complexity must be considered in making a determination.  The physical size of the object that is being worked on can be a factor.  It can be considered construction “because it is a complex task in view of the steps involved…” [ibid]  Probably the most clarifying statement is OSHA’s declaration in the Knobb LOI that “it is not the personnel which will determine whether work will be considered maintenance or construction, but the work itself.” In the same LOI, OSHA points out that while the work may be done during a scheduled “maintenance outage,” that alone will not qualify it as maintenance.”

Finally, in a LOI dated August 11, 1994, OSHA tells its Regional Administrators “where an activity cannot be easily classified as construction or maintenance even when measured against all of the above factors, the activity should be classified so as to allow application of the more protective 1910 or 1926 standard, depending on the hazard.  In such cases the situation should be issued in the alternative with the emphasis on the more protective standard.”   Wow!  That appears to say that if you are not sure, find a standard that fits the situation, no matter where it comes from.  How bizarre can it get?  Here’s how.

In a Letter of Interpretation dated April 17, 2006, OSHA was asked if permanent guardrails that were 36 inches high would suffice during construction in a “General Industry facility.”  The existing facility apparently had guardrails on its platforms that were an acceptable 36 inches high, in compliance with the General Industry requirements for guardrails.  However, construction was going to occur at this same facility. Subpart M of the Construction Standards requires that guardrails shall be installed between 39 and 45 inches.  Consequently, in this instance, OSHA stated that a temporary guardrail would have to be installed adjacent to the lower existing permanent 36 inch high guardrail to protect employees during the construction activities.  Justification for this requirement was that “construction activities often include carrying tools and materials that are heavy, awkward to handle, and, in the case of large materials, can sometimes block the employees’ view.”  In other words, if the employee is blindly stumbling along dragging heavy tools, he better have a higher guardrail.  Otherwise, it’s okay to have a lower guardrail for the permanent employees of the facility.  Amazing.

Keep in mind that the OSHA standards are minimum requirements and they are promulgated to address safety hazards in the workplace.    Since it is OSHA’s standards, it can manipulate and interpret them in any way it chooses.   However, for your protection, do what is right to protect yourself and your fellow employees, not only from hazards that may cause serious injury or death, but also from ridiculous interpretations, and ultimately, ineffectual citations.