OSHA's RFI on its Lockout/Tagout Standard: An Opportunity and a Challenge
On May 20, 2019, OSHA issued a Request for Information (RFI)[1] in connection with its plan to amend the OSHA Lockout/Tagout (LOTO) Standard, 29 C.F.R. 1910.147. The LOTO Standard "covers the servicing and maintenance of machines and equipment in which the unexpected energization or start-up of the machines or equipment, or release of stored energy, could harm employees." According to the RFI, OSHA is seeking information in two areas "where modernizing the Lockout/Tagout standard might better promote worker safety[2] - (1) use of reliable control circuit type devices in lieu of energy isolation where they are "at least as safe," and (2) robotics. The apparent objective of this rulemaking is to clarify what measures, short of full energy isolation, provide effective protection to employees performing maintenance and servicing activities, and it may apply to minor servicing activities and testing and positioning activities. Unless employers fully engage in this proceeding, they may find that the final outcome of this initiative imposes huge additional costs in the form of retrofits or restrictions on current practices and does not provide the expected clarification. This alert describes what we see as the primary opportunities and challenges presented by this initiative. Comments are due August 19, 2019.
Opportunities: Certainty, greater flexibility and improved machinery offerings.
For those employers already relying on the use of reliable control circuits to prevent unexpected start-up or release of energy from energized equipment and avoid coverage of the LOTO Standard (and its requirement for de-energization/energy isolation), this initiative should eliminate the current uncertainty as to whether the measures they currently use are legally adequate. It would also allow machinery manufacturers to explicitly embrace the use of their machinery in this manner. It may also provide greater flexibility. For those employers who would like to take advantage of this technology for the first time, and for those employers who would like to expand their use of this technology to control hazardous energy while performing maintenance and servicing activities, this initiative provides a golden opportunity to educate OSHA on the appropriate uses of this technology. It would also encourage machinery manufacturers to seek other opportunities for the application of this technology.
Challenges: Taking advantage of newer technology to effectively protect workers from hazardous energy sources without taking on significant new burdens.
The court and the OSH Review Commission decisions[3] currently recognize that reliable control circuits effectively can effectively prevent unexpected start-up or release of energy from energized equipment and, in those situations, the OSHA Lockout/Tagout Standard does not apply. Under current law, OSHA has the burden of proving that the use of control circuits does not prevent unexpected start-up or release of hazardous energy. It seems clear from the Standards Improvement Project IV Final Rule[4] that OSHA plans to overturn current law under GM Delco by amending the LOTO Standard.
We anticipate that OSHA will propose to eliminate the eight uses of the word "unexpected" from the LOTO Standard so that all energy control measures are subject to the OSHA LOTO Standard. The LOTO Standard is currently interpreted by OSHA to limit the ability to use control circuits (instead of energy isolation) under the exceptions for "minor servicing activities" (on the basis that LOTO would prevent economic use of the equipment) and "testing and positioning activities" (on the basis that LOTO would make it technically impossible to make the changes needed to use the machine). This means the LOTO Standard must be amended to recognize the broader use of reliable control circuits as an alternative energy control measure.
OSHA states that it believes the use of control circuit type devices is typically limited to the types of tasks that do not meet the minor servicing exception in the Lockout/Tagout standard but that also do not require either extensive disassembly of the machine or worker entrance into hazardous areas that may be difficult to escape quickly, and identifies machine setup as an example. For both OSHA and employers, the big challenges involve formulating the language that would be used to define and authorize the expanded use of reliable control circuits rather than energy isolation, and ensuring the changes are understandable to OSHA personnel, employers and employees. For that reason, "OSHA is requesting information about how employers have been using these devices, including information about the types of circuitry and safety procedures being used and the limitations of their use, to determine under what other conditions control circuit type devices could safely be used."
In revising the LOTO Standard, it also appears that OSHA will identify the use of reliable control circuits as an exception to the general rule and take the position that, if an employee could be exposed to hazardous energy, without regard for existing control measures, the standard applies. This means that control measures would be considered adequate only if they satisfy the requirements of the amended LOTO Standard. This would dramatically shift the burden of proof from OSHA's current burden of showing a potential for unexpected energization, start-up or release of energy to the employer having the burden of showing its reliable control circuit meets some specified level of safety performance.
According to OSHA, it issued a variance in 2016 authorizing the applicant to use reliable control circuitry rather than energy isolation for a specific task after performing a safety review of the complete system and concluding:
(1) that the alternate device allowed energy control measures to remain under the personal control of the exposed
employee;
employee;
(2) that employees were able to verify "de-energization";
(3) that authorized employees were easily identified before equipment restart; and
(4) that the alternative system could, as a whole, be considered as protective as an energy isolating device, taking into
account the potential for component failures and attempts to bypass the system.
account the potential for component failures and attempts to bypass the system.
In using phrases such as "as protective as," "at least as safe," or "an effective alternative to full lockout," we believe OSHA recognizes this determination must be based on objective criteria tied to risk assessment. Hiring a qualified expert to perform such an assessment for each machine would be prohibitively expensive. OSHA suggests the possibility of determining whether a system can achieve a certain "safety integrity level" under IEC standards or "performance level" under ISO standards and, in effect, is asking what level would reduce the risk to an acceptable level. At the highest levels, the costs can be dramatically higher. How would those levels be assessed if not provided by the manufacturer? What if the manufacturer provides an assessment for the machine prior to integration into a manufacturing line? What if the machine is subsequently modified by the user?
There is also the question of how to address older equipment where employers may currently be relying on safety circuits that do not achieve the "safety integrity level" or "performance level" that OSHA may deem necessary. Would OSHA, depending on the "safety integrity level" or "performance level" achieved, and the history of use of the equipment, consider grandfathering that equipment with or without some phase-in of required retrofitting? If so, to what level? Finally, there needs to be some appropriate mechanism for OSHA to verify and an employer to demonstrate that the control circuitry satisfies the applicable criteria. In issuing the referenced variance, OSHA took approximately two years to determine one control circuit-based system at one site was acceptable for one task.
OSHA's RFI says the agency is seeking information on how "modernizing the Lockout/Tagout standard might better promote worker safety without additional burdens to employers." Experience teaches the value of considering the potential outgrowth of this initiative. How would your operations be affected if OSHA compliance personnel interpreted the "alternative measures that provide effective protection" requirement of the minor servicing exception to require use of the same reliable control circuits discussed above. If the impact would be significant, OSHA needs to hear about that now rather than later.
We have identified some of the critical issues that employers, in consultation with equipment manufacturers, need to address in response to this RFI. The complexity of these technical, policy and legal issues is far too great to address in the traditional, single-proposal, rulemaking process. By the time the agency issues a formal proposal, it is likely to have already made most of the critical decisions and it is generally extremely difficult to convince the agency to make a major change in direction at that point in the process. We do not believe the current ANSI Z244.1-2016 standard provides the necessary flexibility to employers. The current exception from LOTO for minor servicing activities was added at the 11th hour at the direction of OMB and the current ability to rely on reliable control circuitry to avoid coverage under the LOTO Standard was the result of a rare court decision that rejected OSHA's interpretation of the LOTO Standard. Failure to weigh in on these issues now could result in huge and unnecessary economic costs.
For more information, or if you would like our assistance in preparing comments, please contact Lawrence Halprin at halprin@khlaw.com or Manesh Rath at rath@khlaw.com.
[2] OSHA states the modernization of the LOTO Standard would be accomplished "without additional burdens to employers." However, this assertion appears to be based on the inappropriate assumption that the precedent established by GM Delco decision issued by the US Court of Appeals was erroneous and should be ignored. In Reich v. General Motors Corporation, 89 F.3d 313 (6th Cir. 1996) ("GM Delco"), the court held that the OSHA LOTO Standard does not apply where control circuitry adequately delays and warns the potentially exposed employee about equipment start-up so that start-up would not be "unexpected" and the exposed individual would have adequate time to vacate the zone of danger. Subsequent case law has appropriately extended the holding of GM Delco to exempt servicing and maintenance activities from LOTO where the use of control circuits effectively prevents, rather than simply delaying, machine start-up. This principle has been applied where a control circuit was locked in a shutdown mode that reliably prevented start-up and would logically extend to situations where a reliable control circuit device, such as an interlocked barrier guard, is blocked open by a body part of the person performing the maintenance and servicing activity.
[3] Reich v. General Motors Corporation, 89 F.3d 313 (6th Cir. 1996) ("GM Delco"), affirming Secretary of Labor v. General Motors Corporation, Delco Chassis Division, OSHRC Docket No. 91-2973 (April 26, 1995).