Overhand Bricklaying Exemption Citation Thrown Out

By Marian J. Marshall

In Arizona recently a contractor was cited for failure to have fall protection on both sides of the wall when employees were pouring grout in to reinforce it. In this particular situation, OSHA compliance officials argued that grouting falls within the context of "construction" of the wall and was therefore NOT covered under the overhand bricklaying exemption.

Fortunately for all mason contractors this citation was contested and the Administrative Law Judge threw the case out. Prior to the hearing on this citation, there were several issues which I brought to OSHA's attention. First and foremost I told agency officials that if contractors were required to have scaffolding on both sides of the wall, there would be no way to brace the wall. In addition, I asked OSHA staff if there was no scaffolding, would employers be required to tie employees off for fall protection. But more importantly I simply did not understand how grouting could not be considered part of the "construction" process?

Arizona is a state-plan state; their interpretation of the standard is that grouting IS included in the overhand bricklaying exemption. Obviously, the Administrative Law Judge agreed with Arizona's interpretation. MCAA will now draft a letter to OSHA requesting an interpretation of the overhand bricklaying exemption as it pertains to grouting. Once that interpretation is provided, OSHA will publish it on its website so all compliance officers will be required to refer to it and future confusion about this important issue will be eliminated.