OSHA To Change One Word In Standard

By, Robert Box

We recently published the article “OSHA Wants More Changes – Here’s A Sneak Preview” in which we reviewed proposed changes and revisions to existing OSHA standards. One of the proposals, removing one word from the Lockout/Tagout standard, could prove costly to employers.

The goal of OSHA’s proposed updates to modernize its standards is to do away with inconsistent, duplicative and outdated provisions. The updates are said to be noncontroversial and therefore shouldn’t require extended discussions and rulemaking.

Some employers are taking exception to the proposed change to the Lockout/Tagout standard, arguing the change does not warrant being lumped in with simple updates.

A One-Word Change To Lockout/Tagout Rule

OSHA’s Lockout/Tagout rule lays out standards required by employers to protect workers from potentially hazardous energy sources while working on equipment. Under the current rule, machines must be disconnected from energy sources when “unexpected” energization of the equipment could result in injury.

OSHA seeks to remove “unexpected” from the Lockout/Tagout standard because employers have been effectively defending themselves from citation and penalties based on that one word.

If there are warning devices such as alarms and lights that precede equipment energization, then it wouldn’t be unexpected, and according to the present rule, would not require Lockout/Tagout procedures.

OSHA Wants To Overturn A Court Ruling

OSHA has been hamstrung by a court case two decades ago in which it argued the Lockout/Tagout rule applies if injuries could occur from an unintended startup of a machine, even if there was a warning of such startup.

However, the 6th Circuit U.S. Court of Appeals ruled that the word contained in OSHA’s Lockout/Tagout standard, “unexpected,” means there must be an element of surprise. If a machine is designed not to start without alerting workers, then there is no surprise, and therefore no requirement to follow the Lockout/Tagout standard.

OSHA says removing the word “unexpected” from the rule would eliminate confusion about rule applicability, and would be better aligned with the agency’s original intent for the rule. However, removing the word “unexpected” from the rule would essentially overturn the 6th Circuit U.S. Court of Appeals’ decision.

From a pure safety perspective, removing the word “unexpected” would undoubtedly be safer for workers as more machines would be required to be locked and tagged appropriately. The argument from employers is with OSHA’s attempt to sneak this change in without due process and formal rulemaking.

OSHA’s standards and improvements project, by its own admission, is intended to make updates with insignificant cost or burden on employers. If a company has invested in ensuring equipment is specially outfitted not to start unexpectedly, removing “unexpected” from the Lockout/Tagout rule could pose a significant adverse affect on operations and costs on employers, which should require OSHA going through the rulemaking process.