May 11, 1999

J. Nigel Ellis, Ph.D., CSF, P.E., CPE
President
Dynamic Scientific Controls
P.O. Box 445
Wilmington, Delaware 19899-0445

Dear Mr. Ellis:

This is in response to your letter of March 18, 1998 in which you raised several issues "for answer now where possible but also intended for [inclusion in the Advanced Notice of Proposed Rulemaking on Subpart M]." We apologize for the long delay in answering your letter. We have answered several of your questions below. With respect to the others, we will consider including the issues they raise in our upcoming Advance Notice of Proposed Rulemaking for Subparts M (fall protection) and L (scaffolds).

Question 1: The difference between maintenance and construction

Answer: Your first question is whether painting a power pole is maintenance or construction work. In your example the poles are painted "periodically between ten and twenty years." You ask if the following factors bear on whether the work is maintenance or construction: (1) whether the work is done by an outside contractor rather than by a power company's own employees; (2) if the poles are painted while major parts of the pole are live; (3) if painting the poles is a regular part of the employee's work, and (4) type of tower (pole or lattice).

If the painting of the 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 maintenance work. The fact that 10 or 20 years transpires between repainting would not normally alter this conclusion, as long as the repainting continues to be a scheduled activity. The following factors do not affect whether the work is considered maintenance or construction: whether the work is done by the power company or by an outside contractor; parts of the tower are live; painting the poles is a regular part of the employee's work and whether the tower is of a pole or lattice configuration.

[Note: Additional clarification on this issue is available in the November 18, 2003 letter to Mr. Raymond V. Knobbs (Added 6/14/2004)]

Question 2: When painting or welding is done as a construction activity, do OSHA regulations permit the work to be done while standing on one foot on an offset step (climbing) single rail ladder?

Answer: No; §1926.1053(b)(19) prohibits the use of single rail ladders.

Question 3: Is working (other than climbing activity or accessing) from any fixed ladder permitted? Does this depend on whether fall protection is provided?

Answer: First, under §1926.1053(a)(19), fall protection must be provided - whether the employee is climbing (up or down) or working from a ladder - whenever the length of climb equals or exceeds 24 feet. Also, even if the length of climb is less than 24 feet, under §1926.1053(a)(18), cages, wells, ladder safety devices, or self-retracting lifelines must be provided where the top of the ladder is greater than 24 feet above lower levels.

Second, §1926.1053(b)(4) provides that "ladders shall be used only for the purpose for which they were designed." For those situations where §1926.1053 does not require fall protection, an employee may work from a fixed ladder without fall protection only where that work is consistent with the purpose for which the ladder was designed. Most vertical, fixed ladders were not designed to work from with both hands off the ladder.

In addition, as explained in the next answer, a cage or well is usually designed to provide fall protection while moving up or down the ladder - not while working with both hands off the ladder.

Question 4: If a worker leans out from a fixed ladder while working and uses the ladder safety system for support, must the employer protect the worker with an additional fall protection device?

Answer: Most ladder safety systems (vertical lifeline type systems) are not designed to support a worker leaning out from the ladder; they are usually designed to protect a worker while fully on the ladder. Also, a cage or well is not designed toprovide fall protection for a worker using the cage or well for support, or working with both hands off the ladder. Using such ladder safety systems, cages or wells for support would violate §1926.1053(b)(4).

In the type of situation you describe, if the worker cannot perform the work with both feet and one hand on the ladder, the employee will have to be protected by more than a harness andlanyard connected to a ladder safety device. The tie-off type support would have to meet the requirements of a boatswain's chair or other single point adjustable scaffold. The requirements for these devices are listed in §1926.452(o).

Question 5: Is climbing a single rail ladder permitted on a tank or power pole under 1926.1053(b)(19)?

Answer: No. Section 1926.1053(b)(19) prohibits the use of single rail ladders.

Question 6: Does 1926.502(d)(20) require a second person to be present for rescue purposes?

Answer: Not necessarily. Section 1926.502(d)(20) states that "the employer shall provide for prompt rescue of employees in the event of a fall or shall assure that employees are able to rescue themselves." The particular hazard that Section 1926.502(d)(20) addresses is being suspended by the fall arrest system after an arrested fall. While an employee may be safely suspended in a body harness for a longer period than a body belt, "prompt" requires that rescue be performed quickly -- in time to prevent serious injury to the worker. There are a wide range of ways in which this requirement can be met, depending on the particular circumstances of the work site. For example, a single worker equipped with communication equipment that enables the worker to obtain help promptly would meet the requirement.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA's requirements are set by statutes, standards, and regulations. Our letters of interpretation do not create new or additional requirements; they instead explain existing requirements and how those requirements apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed herein. From time to time, letters are affected when OSHA updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To ensure that you are using the correct information and guidance, please consult OSHA's website at http://www.osha.gov. If you have further questions, please feel free to contact the Directorate of Construction at (202) 693-2020.

Sincerely,


Russell B. Swanson, Director
Directorate of Construction

[Corrected 6/14/2004. Question numbers were added for reference purposes.]