New LOTO Rules Are On The Horizon

A few weeks ago OSHA announced its decision to leave the Lockout/Tagout (LOTO) Standard alone for now, but not for long. Immediately following this decision OSHA issued a Request for Information (RFI) to get feedback from industry stakeholders about their equipment and operations, and how technological advancements (i.e. computer-based controls) could affect LOTO rulemaking down the road.

There is general agreement that OSHA’s most recent non-decision was made, at least in part, because of the “overwhelming opposition” to the change they have been trying to make since the late 90s, which involves eliminating the word “unexpected” from the standard (see below). Doing so would significantly broaden the scope of LOTO procedures in most workplaces, and the potential impact on employers would be huge.

Why has OSHA wanted to make this edit for such a long time? The answer lies at the beginning, when the LOTO Standard was created, and in how case law has shaped the policy since then.

Enacted during the Clinton Administration (1989), the intention of the LOTO Standard is to protect workers from harm when equipment is being serviced. Everyone agrees that having such a standard is a good thing. What people haven’t agreed about is the definition of the word “unexpected.” The existing LOTO Standard states that it:

“… 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.”

— 29 C.F.R. 1910.147(a)(1)(i)

OSHA’s LOTO standard — and ANSI Z244.1-1982, the standard upon which OSHA’s was based — makes it clear that the hazard at issue is an employee’s exposure to an unexpected energy source. While the standard specifies that “energization” can be from “any source of electrical, mechanical, hydraulic, pneumatic, chemical, thermal, or other energy,” it does not define what “unexpected energization” means.

It didn’t take long for the concept to be defined in court, and OSHA has never been happy with the decision.

In 1996 the US Court of Appeals (6th Circuit) determined in Reich v. GM Delco that the standard is meant to apply only when an employee is endangered by a machine that can start-up without the employee’s foreknowledge. The 6th Circuit said that the use of the word “unexpected” implies an element of surprise, and the machine(s) in question in the GM Delco case were designed so they could not re-start without providing notice. Additional case law has reinforced this understanding,

OSHA says that the original intent of the word “unexpected” was any energization or startup that could happen before the employee has completed the lock-out/tag out process. In other words, OSHA believes that the emerging case law, starting with the Reich v. GM Delco decision, was allowing employers to use warning and delay systems as a way to avoid lockout, and were endangering employees by doing so.

Even though there is currently a pause in OSHA’s efforts to tweak the existing standard, employers should know that significant new LOTO rulemaking is on the horizon. I encourage anyone affected to participate by reading the RFI (it isn’t long) and responding online. Comments must be submitted on or before August 18, 2019.

Employers should also be aware that whenever national OSHA policy is under review, enforcement risks increase and create related liability risks. Contact me if you have any questions about the LOTO standard and how it affects your workplace. I can help you review your LOTO policies specifically to help you identify variance considerations and to reduce your liability risks.

About the Author: James Laboe

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