Construction vs. Maintenance for OSHA Compliance
Safety Consultant with Sheldon Primus
Construction vs. Maintenance for OSHA Compliance
November 23, 2020
In this episode, Sheldon goes over the legal definitions for Construction and Maintenance for OSHA compliance. This distinction is a difficult one, but very important for choosing the correct Code of Federal Regulations.
OSHA, Compliance, OSHA Compliance Help, Safety Consultant, Sheldon Primus, EHS, HOP, BBS, US Regulations, Construction, General Industry, Manufacturing, Medical

[00:00:00] :  Are you the person responsible for OSHA compliance for your company? Well, have I got the event for you? January 11th and 12th, 2021. I'll be doing an OSHA compliance masterclass for you that are responsible for all things OSHA. For your organization. Visit Sheldon prima's dot com backslash events for more information. All right, welcome back. So here's what we're gonna do today. I'm really going to do something that I did on linked in and alive Facebook and everything else. So I've been trying to do those once a week and in some cases, twice a week. I know in the future of my goal is going to be three times a week doing live events, and I say events, but truly it's just a Facebook live, and it's just me right there doing my feed. And people are texting or chatting, actually say doing that. So if you are not in my Facebook group, you would actually need to go to facebook dot com backslash groups with an s back slash safety consultant no s. You have to answer three easy questions. Make sure you agree to the terms of the group, and then you are in, uh, and the other way you could get it would be through my other Facebook pages. So if you go Thio pages, OSHA compliance Health page safety consultant US Page E. Believe that Oh, yeah, I got the shopper safety page, my business one and then the nonprofit The Knee Osti Page, which is National Environmental and Occupational Safety Training Inc So that's my nonprofit. So one of those pages, you'll see it or if you're on my LinkedIn, Sheldon Prima's. So once you're on linked in, you just type in shell the prime, miss, uh, send me an invite and then you're in. So what we to talk about is something that truly you would think It's easy to know, but it's actually not as easy as you would think. So I'm gonna talk about is if you are going to be evaluating, especially if you're going to going to a facility, you're the consultant. You're the person who's responsible for understanding, safety and health concerns. Then what? You really want to make sure that you do is you understand or you're looking at a construction activity or you're looking at a general industry activity and you get that first. Then after that, then you could start working our way through the CFR s, which is code of federal regulations. For those of you that aren't in, uh, the U. S. So this could be a U. S. Centric? No thing, but truly, I don't know so many other rules or laws. So what I'm gonna tell you is what I'm seeing with OSHA specifically. So since this is legal terms, we first need to know the definitions, right? So OSHA does have a definition for construction and that construction definition is gonna be found in subpart C in 1926. So part 1926 which is the construction part so apart? See, there's a definition section and it's Section 32 paragraph G Construction work for this purpose means construction alteration and or repair, including painting and decorating. I do not understand why painting and decorating is in there. E just know it ISS. So if you are doing construction work building something for the first time alteration, where your something is up and you guys need to fix it a little alteration repair damage. You got to get it back to its its normal or it's functional part, then that is repair and then painting or decorating. I do not know why painting. I do know which, if I could tell you I do. But I don't And I even looked into a letter of interpretation, and they did include painting in many of the letter interpretation. And then I looked at the pretty ambles preamble XYZ the It's basically this whenever you see a long there was a chain of events that happened for this law to make it into the Federal Register. OSHA keeps those chain of events together, and they group it together in what's called the preamble is to rule. So I looked at the preamble to the rule, and then there's also a preamble to 1926. I looked at that as well, and I cannot find why they included painting and decorating. But when I think of decorating for me automatically, I think of Christmas decorations. But I truly believe the sense of this word. And then again, with that having any direction on this, there's no letter interpretation on this one yet. I believe it was like decorating as such as creating or let's say, manipulating some actual components of, ah, building or facade or something similar to that for a temporary purpose or beautification purpose. So that's my my gut feeling on it, without knowing man. But truly way should probably just take it at at face value, and it says painting and decorating. And whenever you're doing those two activities, think of working in 1926 until otherwise told. So that's the definition of construction. So now let's go through the definition of maintenance, and this one is the tricky part because there is no OSHA definition for maintenance. So you what you would do is the best thing to kind of help you out. There was a letter of interpretation written by Ocean November 18th 2003. I pulled it up right now, so I have it in front of me, and someone was basically asking them question as What's the characteristics of maintenance work? What's the characteristics of construction work? OSHA gives them that definition of construction that I just gave you and then follows up with this right after that. Unlike construction work, there's no regulatory definition for maintenance nor specific distinction between terms such as maintenance and repair or refurbishment. Maintenance activities have commonly been defined in the dictionary, so OSHA is actually going into the dictionary to get there. Wording on maintenance. So this thing is defined in a dictionary as making or keeping a structure fixture or foundation substrates and parentheses in proper condition in a routine, scheduled or anticipated fashion. So that's the key for maintenance. If you're doing this activity and you're doing it in some sort of routine every quarter, every year, every semiannual every two years, who you do this activity, then now it's going to be reteaming scheduled and anticipated fashion. They're gonna call that maintenance. This means that this definition can actually branch out into what what the wording is would be for repair. So even though I gave you the first definition again, let me tell you the definition of construction, which is construct alteration and or repair, including painting and decorating. So now we're thinking, Well, what's repair? What's maintenance? So uh oh, she's delineating that pie. If you're repair, work is routine schedule. And in anticipating man, uh, anticipated fashion, you're actually doing maintenance as opposed to repair. All of a sudden, what that means is you are not in 1926 anymore. This activity is now in 1910 because you're not doing maintenance and the letter of interpretation went a little bit further. They actually gave a difference That is to help you when you're thinking. Is this repair or is this one actually going to be maintenance? So OSHA's decided, Let's let's give you an example of a few things And here is one of them. Construction works not limited to new construction, but includes repair of existing facilities or replacement of structures and their components. For example, the replacement of one utility pole for a new identical poll would be maintenance. However, if the replace with an improved pole or equipment, it would be considered construction. So that's gonna throw you off right there, right? You're thinking, Hold on. You just told me. I mean, you literally just told me that this is gonna be maintenance work if it's routine and regular basis, and now it's repair work. If it's just out of the blue and I need this thing done, yeah, this is kind of consistent to that. So they gave it some context and what's commonly known as like for like material. That's really what they're saying here. So let's say on a slow rain day you're in a manufacturing plant or something like that, and someone notices, Man, he's got is really getting bad next day that we have nothing to do. Let's go ahead and let's replace our own gutters. We don't have to hire anyone from the outside. We'll just do this ourselves. And, uh, when the purchasing agent purchases it and gets the same exact type of gutters that you have originally, then you workers the workers that are doing this work and putting in this new gutter system, though it may be thinking of repair, you're actually going to be calling it maintenance for this type of work. When you say you're doing this in a scheduled and anticipated routine fashion, so that means your wording, it's gonna be this every 10 years, every five years, every whatever increments you wanna put on here, were you going to replace these gutters so you go back into your history, and now you're thinking, Oh, yeah, it's right about that time. So now you're gonna intentionally say and intensely intentionally put in the thought that we're now replacing these things, and if their 10 year gutters every 10 years, it's anticipated. Year nine. We start doing our bid process or your eight, and then we get the material, and now we're changing it out. So maintenance in that case is what you're doing. If this is the first time ever you're doing it and it's not anticipated, meaning the life cycle of this gutter is a 10 year gutter, and now you're changing it out because the life cycles up because that would be anticipated. Fashion then Now you're doing a repair work, and therefore it's 1926. So it's kind of confusing. Yeah, I know. Or at least in my mind, I'm thinking is confusing. But that's one way where you could have the same exact job, the same exact material. But then you'll be looking at 1910 versus 1926 for the activities of the worker. So that's Ah, that's the difference between the two. Uh, the other thing that you're really going to be thinking about is, let's say, the the finance er decides, Well, goodness, it's going to be less money in the long run if we go ahead and and upgrade these things to seamless gutters. Those Let's go ahead and do that. And I'm not going to be doing this every 10 years. Thes seamless gutters now are rated for 15, maybe 20 years. And now you're like, All right, we're done with this. It is actually gonna be maintenance. Excuse me. Repair work, Let's say clearly repair work because the material has changed. It's not like material for, like, material anymore. The material is now upgraded material. So says the material changed. Then now you're in clear, clear 1926 stage. So that means your hand tools and equipment You're gonna be regulated under 1926. And, uh, if you're doing anything else with your ladder, you know your ladders now is going to be in subpart X of 1926 as opposed to subpart D in 1910 s o that Zatz the ramification of what you're seeing here, Uh, with just maintenance vs construction. And truly it's frustrating when you think about it that you're really gonna have to be intentional about your wording as to repair versus maintenance. But it makes a big difference, especially if you're in a informal conference and you recited the wrong thing. So now you've got, you know, some way low room to say, Hey, I contest the citation because I was cited in 1910 when I was doing in 1926 activity. Who knows, You know, it might be a good good wayto go at it. So another thing that will automatically put you from maintenance to repair is if there is a scale and complexity of this job that is going to be increased. So therefore, could still be like material for, like, material. But the scale of getting this thing replaced or refurbished or repaired or maintained is so big, you're gonna have, you know, this crew coming in at this time and you're gonna have to make sure you set aside this part of the facility that's all blocked out, and you're gonna have to coordinate this thing from time to time with different contractors on site. So now you've added another wrinkle to this thing. So OSHA saying we'll do the complexity of what's happening here. We're now going to make this, or at least this activity will be construction. There's also a little thing I don't see it here in this lot of interpretation, but the actual let's say, Hey, don't wanna put in any words in OSHA's milk, but let's just think of it, this wing, the actual work. Then if you're going to do one of these complex to work with the scale that's really going to be large, the value of the end product is going to be increased. So much so. But then this is going to be much different than just taking out, like park for, like park. And therefore, it also would build the case of this now being a construction activity. And, uh, one more thing. I guess I should say it's never what you're rated for, as in your North American Industrial Classifications system code or your standard industrial classification system code in the US, and are actually say North America. Those decode that is used to group together people that are doing the same activity, the same type of jobs together is in that any I. C s code. So it's never really the code. So again, let's say you're manufacturing something and you're you're manufacturing car parts or something, and you're an assembly line car parts and everything else and that's what you're doing. But maybe the orders have gone down because of pandemic. You know, everything is being affected. The supply chain, everything else but three owner says, Well, man, I don't I don't wanna have my workers just laid off. So what I'm gonna do is let's go ahead and start doing some jobs that I would have tried to hire out. And let's go ahead and get to get our workers to do this. And now all of a sudden you're doing irrigation work where you're putting in a sprinkler system or something similar to that. So soon as you break ground you're doing What's the definition of, Ah man made Cut into the earth equals and excavation. So therefore you're in sub par p in 1926. The industry is manufacturing. The activity of the workers is maintenance. So even though you have different activities, uh, it doesn't mean that your umbrella of manufacturing covers for that. So let's say these workers all of a sudden decide Well, while we're at it, let's go ahead and and you know there's something else that's happened or we're doing irrigation work, and somehow we broke a line. And one of these workers used to be able thio do line repair from from their days in the utility and just decided. All right, let's get to shut off valve. Let's go ahead and do this ourselves. We don't need to call the utility. I got this. I used to be a utility worker and they go down a little deeper to find this line break. Someone's able to isolate the valve, and you've gotta valve key and everything else that you need to isolate this thing and you do it. And now your workers, that is a maintenance activity of repairing your piping or, I should say, a repair activity for a manufacturing 1910 facility. You're actually in subpart p for construction. You're like, all the way in. You're all up in it at that point with excavation, because truly those lines are gonna be down about a good 3 ft, in some cases, more so then. Now you got to think about Is this 4 ft? If it's 4 ft, I'm gonna need a ladder or means of egress to go in and out of this thing. All of a sudden, we down 5 ft so we could have a little extra room. Or if this trench basically the excavation, that's deeper than it is wide. So now at that point, we're definitely thinking at 5 ft we need to protective system and all of a sudden it was like, Hold on where I mean, we're manufacturing e don't know anything about sloping or benching or trench boxes or anything like that. So you would have got yourself in a world of hurt at that point. Um, it's It's a really a rare thing for that to happen. I doubt that's what's gonna happen at all. But I'm just wanted to make you aware that the CFR is the 1910 is for anything that is outside of construction outside of agriculture, outside of maritime, that's your 1910. So that means hospitals manufacturing. Um, e guess anything that's, you know, power generation servicing that there's even a little section about scuba diving in there. In subpart are in 1910, uh, general electrical. All those things is activities related to what you're seeing for general industry construction again. You're building anything, you're repairing it. You're painting it or decorating it. You're now in 1926. That's the delineation between the two. And there are still some like, for instance, power generation and distribution. So in construction you can construct a power generation distribution facility. You're gonna be in 1926. But then now when you're servicing and maintaining thesis TEM itself, you're in 1910, even though your title is still power generation and distribution. So that's another one that will really throw you off there. So anyway, that's about all I wanted todo in with you guys just to really give you that, uh, definition there on the podcast. I did it on the live. So if you're ever on linked in and I'm part of your LinkedIn connections, just kinda keep keep your eye upon whenever I go live. And that was one of the things that came on. So I said, might as well do this on the podcast was, well, so so that you guys will have this information. All right. I think I'm gonna be pretty much done with this one. So I wanna make sure that everyone is going to, uh, just really think about your clients. And if you're not full time as a safety consultant yet then your actual workplace and think of the activity of what the workers are doing, and this will lead you to what book to use for guidance and regulation. And then the other thing is you want to make sure that the workers were trained to do what they're doing, especially if they're going outside of what their normal jobs are. So I think you can add that before. But that's a great consideration, because now, if you're in 1910 or 1926 ah, lot of them have requirements to be trained on whatever the activity is. So therefore, now you're gonna have to train your workers even on a ladder. They've already been trained on subpart D in 1910 and manufacturing plant like I gave the theatrics ual of, uh, example. But now you're doing maintenance or you're doing a repair work and support X has its own training, uh, in 1926 and now you're gonna have to make sure your your workers were compliant with that one. So that's when it also makes a big difference for you as well. All right, so I'm going to call it a day with this one. We're not going to do a tip of the week because I just gave you a bunch of their keeping these kind of short because I am leading towards where I'm going to do my 100th anniversary, and I don't have a full schedule of what that's going to be like yet, but I'm planning on doing something really special. So you're gonna be MAWR episodes than ever coming for me recently or coming up. So if you have not subscribed to the podcast yet, please do wherever you're listening to me. Now, if it's safe for you, Thio, go ahead and hit the subscribe button. Do that. If you had not had a chance to share this with some friends or someone that you know will be into this, I know it's not just say, could consultant I do or talk about generally anything that's on my mind. They even have a music episode. You go back to that one as well. E love that one. I'm actually gonna do another one. It's on my mind to do one more music episode because that's been a while, and I got a really big special guest for the 100th anniversary. Can't wait for that one as well or 100th episode. He won't be an anniversary because I never got to 100 before. But anyway, uh, hopefully I'm going to see some of you guys at the OSHA compliance masterclass, which is July 11th in July 12th 2021. You just go to show them prime ms dot com backslash events register for that and I will see you later. Go get him. This episode has been powered by Safety FM.